ECLI:NL:RBDHA:2022:14039

• Datum uitspraak: 17 november 2022
• Publicatiedatum: 23 december 2022
• Zaaknummer: 09/748007-19 English
• Instantie: Rechtbank Den Haag
• Type: Uitspraak
• Rechtsgebied: Strafrecht
• Procedures: Eerste aanleg - meervoudig
• Rechters: H. Steenhuis; D.A.C. Koster; C.I.H. Kerstens-Fockens
• Vindplaatsen: Rechtspraak.nl

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Strafzaak MH17: Verantwoordelijkheid voor de neergeschoten vlucht en de gevolgen voor de slachtoffers

Op 17 juli 2014 werd vlucht MH17 neergeschoten boven Oekraïne, wat resulteerde in de dood van alle 298 inzittenden. In deze strafzaak werden vier verdachten aangeklaagd voor hun betrokkenheid bij de crash. De rechtbank heeft vastgesteld dat de Buk-raket, die de vlucht neerschoot, werd afgevuurd vanuit een veld nabij Pervomaiskyi, dat onder controle stond van de separatisten. De rechtbank heeft de verdachten, waaronder Leonid Volodymyrovych Kharchenko, Igor Girkin, Sergey Dubinskiy en Oleg Pulatov, verantwoordelijk gehouden voor de dood van de inzittenden, en hen veroordeeld tot levenslange gevangenisstraf. De rechtbank heeft uitvoerig stilgestaan bij de rechtsmacht, de procedurele rechtvaardigheid en de rol van de verdachten in de gebeurtenissen die leidden tot de neergeschoten vlucht. De rechtbank concludeert dat de verdachten, hoewel ze niet fysiek de raket hebben afgevuurd, als co-perpetrators kunnen worden beschouwd vanwege hun actieve betrokkenheid bij de organisatie en uitvoering van de militaire operaties van de DPR. De rechtbank heeft ook de claims van 306 slachtoffers en hun nabestaanden behandeld, waarbij aanzienlijke schadevergoeding is toegewezen voor de morele schade die zij hebben geleden als gevolg van de ramp.

Uitspraak

DISTRICT COURT OF THE HAGUE

HEARING AT THE SCHIPHOL JUDICIAL COMPLEX IN BADHOEVEDORP

Criminal Law

Three-Judge Panel

Public Prosecutor's Office No. : 09/748007-19

Date of judgment : 17 November 2022

In absentia

On the basis of the indictment and as a result of the investigation at the hearing, the District Court of The Hague rendered the following judgment in the case of the public prosecutor against the accused:

Leonid Volodymyrovych KHARCHENKO ,

born on 10 January 1972 in
[place of birth] ,

address (as provided by the Ukrainian authorities):
[address] .

Investigation name: Primo

Table of contents of judgment

1. FOREWORD 5

1.1 Introduction 5

1.2 Interpretation of evidence used in the judgment 5

1.3 Reference to evidence and the use of footnotes 6

1.4 Spelling of place names and personal names and use of times 7

2. THE TRIAL 7

3. THE INDICTMENT 8

4. PRELIMINARY MATTERS 9

4.1 Introduction 9

4.2 Validity of the summons 9

4.3 Jurisdiction of the District Court of The Hague 10

4.4 Right of the prosecutor to prosecute 11

4.4.1 Preamble 11

4.4.2 Does the Dutch Criminal Code confer jurisdiction? 11

4.4.3 Is there a limitation on jurisdiction under international law (immunity)? 12

4.4.4 Did the prosecutor forfeit the right to prosecute? 21

4.4.5 Conclusion regarding the right of the prosecutor to prosecute 39

4.5 Grounds for suspension of the prosecution 39

5. GENERAL PRELIMINARY CONSIDERATIONS 39

5.1 Introduction 39

5.2 The criminal investigation conducted by the JIT 41

5.3 Evidence obtained from or via the SBU 42

5.4 Use of witness statements 43

5.5 Expert witnesses and scenarios 46

5.6 Intercepted conversations and transmission mast data 50

5.7 Photographic and video material 52

6. EVIDENTIARY CONSIDERATIONS 53

6.1 Position of the Prosecution 53

6.2 Assessment of the court 53

6.2.1 Introduction 53

6.2.2 Was it a Buk missile originating from Pervomaiskyi? 53

6.2.3 Specific lines of defence of counsel for Pulatov regarding the cause 71

6.2.4 Actual conduct and interpretation thereof 77

6.2.5 Legal interpretation of the actions of the accused 92

6.2.6 Final conclusion on the assessment of charges 102

7. JUDICIAL FINDING OF FACT 102

8. PUNISHIBILITY OF THE CRIMES PROVEN 103

9. PUNISHIBILITY OF THE ACCUSED 103

10. SENTENCING 103

10.1 Prosecution's application for sentencing 103

10.2 Decision of the court 104

10.2.1 Penalty carried by the crime 104

10.2.2 The direct consequences of deploying the Buk TELAR 104

10.2.3 Attitude of the accused 105

10.2.4 The military context and purpose of the deployment 106

10.2.5 Consideration of individual circumstances 107

10.2.6 Exceeding reasonable time? 108

10.2.7 Disclosure of results of the investigation 108

10.2.8 Conclusion 109

11. APPLICATION FOR ARREST 109

11.1 Application for a warrant of arrest 109

11.2 Decision of the court 109

12. CLAIMS OF THE INJURED PARTIES 109

12.1 Introduction 109

12.2 Inadmissibility of injured parties’ claims 111

12.3 Leave to proceed in absentia 111

12.4 International jurisdiction, applicable law and standing under Section 51f DCCP 112

12.4.1 International jurisdiction 112

12.4.2 The law applicable to the claims 113

12.4.3 Section 51f DCCP 115

12.5 Assessment of the claims on their merits 117

12.5.1 Right to compensation for damage under Ukrainian law 117

12.5.2 Damages 118

12.5.3 Discussion of certain individual claims 127

12.5.4 Third-party payments 129

12.5.5 Conclusion 130

13. THE APPLICABLE SECTIONS OF LAW 132

14. THE DECISION 133

Appendix 1: Text of indictment 136

Appendix 2: Overview of other call participants in intercepted conversations 140

used as evidence 140

Appendix 3: Paraphrased intercepted conversations and visual material arranged by date and time 142

Appendix 4: Decisions on each individual claim for compensation 159

1. FOREWORD

1.1

Introduction

On 17 July 2014, flight MH17 crashed in Ukraine, resulting in the death of all 298 people on board. In the MH17 criminal case, the Dutch Public Prosecution Service prosecuted four persons accused of involvement in the crash of this aeroplane, namely

I.V. Girkin, S.N. Dubinskiy, O.Y. Pulatov and L.V. Kharchenko. The court has rendered simultaneous judgments in the cases of these four accused, each of whom is hereinafter referred to by his last name. This judgment relates to the accused Kharchenko.

The judgments in the four cases are phrased as similarly as possible, both owing to their interrelated nature and in order better to inform the reader about the court’s assessment of the cases of all four accused. Regarding defence arguments discussed in the judgments, the court notes the following.

As none of the accused Girkin, Dubinskiy and Kharchenko, nor counsel representing them, appeared in court, the cases of these accused were conducted in accordance with Section 280 of the Dutch Code of Criminal Procedure ( ‘DCCP’) and were therefore heard
in absentia . This means that the cases were heard without the accused being present. Accordingly, nothing is known of the position these accused take with respect to the charges, other than what they have expressed, for instance through the media or otherwise, insofar as such material has been entered in the case file. Those cases were not defended.

Defendant Pulatov was represented by his counsel; pursuant to Section 279 DCCP, his case was heard on an adversarial basis. His counsel mounted a defence with respect to various matters. Although, strictly speaking, these defence arguments were not presented in the cases of the accused Girkin, Dubinskiy and Kharchenko, the court will discuss them with respect to all four cases. This is because the court must answer certain questions
ex officio, regardless of whether a defence was presented on that point. In addition, it is not inconceivable that a successful line of defence in Pulatov’s case could also influence the court’s deliberations and decisions in the cases of the other accused. For this reason, a discussion of those lines of defence is included in all four judgments.

1.2

Interpretation of evidence used in the judgment

The prosecution file contains several types of potential evidence. For example, there are official records of the hearings, judicial findings and decisions, official reports produced by Dutch investigating officers, expert opinions, statements made before the Dutch investigating judge, findings of and statements made to foreign investigating officers and other foreign officials, photographs, video and sound recordings, recorded and intercepted telephone conversations (hereafter: intercepted conversations or calls), web pages and their addresses and translations thereof, reports by local and international organisations, and other written documents.

The court has determined the nature of each piece of evidence used in this judgment and established that it came about and/or was added to the case file in the manner prescribed by law, except where expressly stated otherwise. The court characterises and uses the evidence concerned in the manner prescribed by law as a judicial decision, as an official report made under oath of office, as an expert report, as the court’s own observation of what can be seen or heard in audiovisual material shown and played during the hearings, as a document written by a public body or official, as a document written by a public employee of a foreign State or of an international organisation, or as another written document validly related to the substance of other items of evidence.

The case file does not contain any statements by the accused within the meaning of the law. Indeed, none of the accused made a statement before a Dutch judge or before Dutch investigating officers in a way that could be characterised as a suspect interview. Accordingly, utterances made by the accused, for example in the form of an interview, comments made on social media or by telephone, or in the form of video messages presented by counsel for defendant Pulatov, which have been added to the case file, will be used by the court, should the need arise, as other documents.

Neither does the case file contain any witness or expert statements within the meaning of the law; indeed, no witnesses or experts were examined in court. Statements from witnesses and experts were recorded in official reports produced by the Dutch investigating judge and/or by Dutch investigating officers, as well as in documents from foreign investigating officers and other foreign officials. Furthermore, the court uses written opinions from experts as evidence, which thereby hold as expert reports.

1.3

Reference to evidence and the use of footnotes

In terms of the decision as to whether or not to mention certain evidence in the judgment, the court notes the following. In accordance with the law (Section 359(3) DCCP), only the judicial finding that a charge against an accused has been proven need be substantiated in the judgment with the evidence for the finding and its source. Pursuant to established case law, this is also the case when evidence is used to discuss meritorious lines of defence presented by counsel for defendant Pulatov. The court’s decisions on other matters – such as preliminary matters, questions regarding the reliability or unlawfulness of evidence and seizure decisions – must be substantiated, but need not be supported by evidence. In line with the above, when setting out its considerations and decisions in this judgment, the court has only referred to evidence as it relates to the offences charged. These references to evidence are in the form of footnotes relating to the relevant considerations. The court has also placed footnotes elsewhere in this judgment, some of which concern sources that may be characterised as evidence. However, there are also footnotes which refer to open sources that need not necessarily have been included in the case file, or to literature or case law. In addition, footnotes sometimes contain additional explanation of what the court has stated in the text. The court has therefore placed footnotes in several places in the judgment, without being strictly bound by law to do so, in order to make it easier for the reader to understand the judgment on the points in question. These footnotes are particularly useful to readers who are not a party to the proceedings and do not have access to the prosecution file, enabling them to better understand the court’s reasoning. Conversely, however, this means that considerations based on evidence contained in the case file are frequently included without a footnote referencing the evidence concerned; this is particularly true of the court’s considerations regarding the preliminary matters. The court considers that including footnotes referencing evidence or sources on all these points would make the judgment more difficult to read. The frequent use of footnotes would simply make the text overly long and effectively unreadable.

Footnotes always state where the piece of evidence concerned can be found in the case file as briefly as possible. When a footnote refers to specific passages in a court document, the court gives the Primo number under which that document is included (as an annex) in the case file; the case file page number is also provided, or, in the absence thereof, the page number of the court document concerned. In the case of a reference that does not concern any specific passage, the court gives only the Primo number. When referring to a court document that does not have a Primo number, the court uses the name of the court document concerned. In the case of intercepted conversations, the reference gives the date and time of the conversation. This ensures that evidence is traceable and sufficiently identifiable.

1.4

Spelling of place names and personal names and use of times

The court specifies that this judgment uses the spelling in Latin script that is as close as possible to the Ukrainian name when referring to personal names and place names. This choice follows on from the fact that the flight MH17 disaster took place over Ukrainian territory. ^[1]

Specifically with respect to the place names ‘Pervomaiske’ and ‘Pervomaiskyi’, the court notes that they often appear to be used interchangeably in the case file. As these two places are very close, in terms of both their pronunciation and their more or less contiguous location immediately south of Snizhne, and as the indictment refers to a place near Pervomaiskyi, the court treats this interchangeable use as irrelevant, except where otherwise indicated.

Regarding the use of times, the court specifies that the stated times refer to the local time in effect at the location in question, except where expressly stated otherwise. In such cases, the time will usually be indicated by its deviation from Coordinated Universal Time (UTC).

2. THE TRIAL

The trial took place at the following hearings:

9 and 10 March 2020 (introductory) and 23 March 2020 (decisions by the court),

8, 9, 10, 22, 23, and 26 June 2020 (case management hearings) and 3 July 2020 (decisions by the court)

31 August 2020 (case management hearing on claims by the injured parties and the right of the relatives to address the court, decisions by the court),

28 September 2020 (case management hearing),

3, 4, 5, 12 and 13 November 2020 (case management hearing); 25 November 2020 (decision in the Pulatov case),

1 February 2021 (case management hearing) and 8 February 2021 (decisions by the court),

15 and 16 April 2021 (case management hearing, application for inspection of the MH17 reconstruction, case management hearing on claims by injured parties, decisions by the court) and 22 April 2021 (decisions by the court),

21 May 2021 (case management hearing: preparation of inspection) and 26 May 2021 (inspection of the MH17 reconstruction),

7, 8, 9, 10, 17, and 24 June 2021 and 8 July 2021 (hearing on the merits)

6, 7, 9, 10, 13, 14, 16, 21, 23, and 24 September 2021 (right of the relatives to address the court)

1 November 2021 (case management hearing), 2 November 2021 (decisions by the court, case management hearing) and 8 November 2021 (right of relatives to address the court)

8 December 2021 (claims by injured parties) and 20, 21 and 22 December 2021 (prosecution's final submissions and sentencing request),

7, 9, 11, 14, 16, 18, 21, 23, 24, 25, 28, and 30 March 2022 (oral submissions by counsel for defendant Pulatov)

16, 17 and 18 May 2022 (reply by the MH17 counsel for the relatives, reply by the prosecution),

8, 9, and 10 June 2022 (rejoinder by counsel for defendant Pulatov, final word by defendant Pulatov)

22 September 2022 (resumption and immediate adjournment of the trial) ^[2]

17 November 2022 (conclusion of the trial and delivery of the judgment).

The court is cognisant of the application by the prosecutors T. Berger, W. Ferdinandusse, M. Ridderbeks and B. van Roessel (hereinafter collectively referred to as the prosecution.

Furthermore, the court is cognisant of the submissions of the MH17 counsel for the relatives in relation to the claims by the injured parties.

3. THE INDICTMENT

The text of the writ of summons is attached to this judgment as Appendix 1.

Under the first count, it is alleged that the accused, together with one or more others, or alone, intentionally caused flight MH17 to crash, causing the death of the occupants of that aeroplane. With respect to this offence, in the indictment there is a principal charge, an alternative charge, a further alternative charge and a furthest alternative charge, relating to various types of perpetration.

Under the second count, it is alleged that the accused, together with one or more others, or alone, intentionally and with or without premeditation, took the lives of the occupants of flight MH17 by firing a Buk missile at that aeroplane, causing the aeroplane to crash, and the occupants to die. With respect to this offence too, in the indictment there is a principal charge, an alternative charge, a further alternative charge and a furthest alternative charge, relating to various types of perpetration.

4. PRELIMINARY MATTERS

4.1

Introduction

In keeping with the sequence prescribed by law, the court will first go about responding to what are known as the procedural matters of Section 348 DCCP. These concern in turn the validity of the summons, the jurisdiction of the court, the right of the prosecutor to prosecute, and whether there are reasons to suspend the prosecution. The court is required to answer these questions
ex officio in all cases, even if the defence does not raise them. As a procedural shortcoming (at any rate regarding the first three questions) could affect all the cases, in addressing these matters the court will also take into account the arguments made by counsel for defendant Pulatov when considering the cases of the other three accused.

4.2

Validity of the summons

Pursuant to Section 261(1) DCCP, the summons must state the offence charged, specifying at approximately what time and place it is alleged to have been perpetrated. The second paragraph adds that the summons must also state the circumstances in which the offence is alleged to have been perpetrated. The charge against the accused must be clear, intelligible, sufficiently factual and not internally contradictory, as to the offence, time, and place. The importance of this provision is to ensure that, based on the indictment, the accused is aware of the charges against which he or she must defend him or herself. The charges in the indictment must be understandable to the court as well.

Although the question of whether or not a summons is valid is a procedural one, to be answered based on the text (the foundation) of the indictment itself, the court may consider the content of the case file in assessing the validity of the indictment. The court has more latitude to do this now, given that the court is addressing this question in the judgment and not on the occasion of a preliminary objection.

The prosecution has listed two offences, cumulatively, in the indictment. Both offences are segmented in the indictment, namely into the principal, alternative, further alternative, and furthest alternative variants. The indictments are entirely identical for the four accused in whose cases the court will deliver judgment.

In both the first and second count, the wording of the principal and alternative charges is virtually identical, ^[3] the difference being that the principal charge explicitly aims for conviction based on functional perpetration or co-perpetration. As the prosecution explained, this was done in order to have the court, when considering whether the offences charged had been proven, first address whether functional perpetration or co-perpetration had been involved.

The court notes that functional perpetration basically means that although an offence is physically committed by others, the functional perpetrator bears responsibility for it and for that reason may be considered criminally culpable.

The prosecutor has rightly noted that functional perpetration of a criminal offence is not a separate form of participation. Functional perpetration is covered by the concept of perpetration in the sense of Section 47(1) of the Dutch Criminal Code (DCC). Therefore, it need not be stated explicitly in the charge.

Following on from this, the court considers that the principal and alternative charges - if proven - would yield exactly the same characterisation as regards both the definition of the offence and the form of participation. For these reasons, this format is different to a format whereby, for example, principally murder and alternatively manslaughter are charged or principally co-perpetration and alternatively perpetration. In the opinion of the court, it would therefore have been more accurate and clearer to charge the principal variant only, whereby the functional perpetration part could be cancelled if not proven.

The additional explanation provided, however, does make sufficiently clear what the prosecution intended to charge, and why the indictment was set out in this manner. For the reasons stated above, the court therefore does not find the indictment to be partially void. Giving a purely legal opinion on the manner of indictment by voiding part of the indictment would add nothing. This holds true for the cases of all the accused.

The court shall base its judicial finding of fact, however, on the premise that the principal charge comprises both functional and ordinary perpetration and co-perpetration, whereby the court considers that functional perpetration of a criminal offence should by its nature be characterised as an alternative variant. The fact of the matter is that, if the physical or other contribution of an accused is essential to perpetrating an offence, that contribution is the crux of the charge, and that should be reflected in the characterisation of the charge. The essence of functional perpetration, however, is that someone who did not personally contribute physically to an offence may in some cases still be held responsible for it. In other words, only if perpetration does not apply, can functional perpetration apply.

The writ of summons is therefore valid.

4.3

Jurisdiction of the District Court of The Hague

The court has jurisdiction to hear the MH17 criminal case. The jurisdiction of District Court of The Hague stems from the provisions of Article 2 of the Prosecution and Trial in the Netherlands of Offences in Connection with the Downing of Malaysia Airlines Flight MH17 Act. ^[4] The criminal case was not heard in the courtroom designated by order in council ^[5] at the courthouse in The Hague, but rather at the Schiphol Judicial Complex in Badhoevedorp, the Netherlands. This location outside The Hague court district was designated by the Minister of Justice and Security pursuant to the provisions of Article 21b(3) of the Judiciary Organisation Act. ^[6]

4.4

Right of the prosecutor to prosecute

4.4.1

Preamble

The question of whether the (Dutch) prosecutor is entitled to initiate criminal proceedings, in other words has a case to bring, falls into three parts. First, whether the court has jurisdiction. In other words, whether the Dutch Criminal Code confers jurisdiction to prosecute and try the offences with which the accused are charged in the Netherlands. If it does not, the Dutch prosecutor has no right to initiate criminal proceedings. Furthermore, the right to prosecute depends on whether there are reasons, such as immunities, why international law might nonetheless limit the operation of Dutch criminal law, and finally, the question of whether the prosecutor has forfeited his right to prosecute owing to procedural errors or omissions in the way the investigation and prosecution took place, as argued by counsel for defendant Pulatov. The court discusses these three questions below.

4.4.2

Does the Dutch Criminal Code confer jurisdiction?

This question must be answered in the light of what the indictment alleges. The allegation is that flight MH17 crashed as a result of the firing of a Buk missile from a site near Pervomaiskyi in Ukraine. The allegation relates to one set of acts that cost the lives of 298 people of 17 different nationalities, including many Dutch nationals. The indictment splits this set of acts into two charges under the law. The first charge is - as indicated above - the intentional causing of an aircraft to crash resulting in the death of its 298 occupants (punishable under Section 168 DCC) and the second charge is the murder or manslaughter of 298 persons (punishable under Sections 289 and 287 DCC). Those offences are alleged to have been committed in Ukraine, which means that Ukraine, under the territoriality principle, would in any case have jurisdiction to prosecute. Yet the Netherlands has that right too.

Indeed, like the prosecution, the court finds that the charge under Section 168 DCC concerns one conduct, namely causing an aircraft to crash. As Section 5 DCC provides that Dutch criminal law is applicable to anyone who commits a crime against a Dutch citizen outside the Netherlands, and the victims of the alleged conduct of causing MH17 to crash included Dutch citizens, the court holds that the prosecutor was entitled to prosecute that offence in the Netherlands under Section 5 DCC. In doing so, the court notes that the other requirements set, of ne bis in idem and the Dutch minimum sentence of at least eight years, are also met. Therefore, the Netherlands has so-called original jurisdiction with respect to the charge under Section 168 DCC. The situation is partly different as regards the murder or manslaughter of 298 people of various nationalities. That charge involves 298 counts of intentional killing one person. The killing of that one person is the core of the conduct charged. In the case of victims who were Dutch nationals, the Dutch prosecutor had the right to prosecute under Section 5 DCC and so the Netherlands has original jurisdiction. Regarding the victims who were non-Dutch nationals, unlike the prosecutor, the court is of the opinion that the basis for jurisdiction cannot be found in Section 5 DCC simply because the cause of death of all the victims was one act. These are 298 allegations of murder or manslaughter which, while having the same cause, are independent offences. The basis for the Dutch prosecutor's right to prosecute as regards that part of the second charge can, in the court's opinion, be found in the so-called derived jurisdiction of Section 8b(1) DCC. This provides that Dutch criminal law applies to anyone the criminal prosecution of whom has been transferred to the Netherlands by a foreign State pursuant to a treaty affording the power of criminal prosecution to the Netherlands. Such a treaty was concluded between the Netherlands and Ukraine: the so-called Treaty of Tallinn. ^[7] The criminal proceedings relating to flight MH17 were transferred from Ukraine to the Netherlands pursuant to the provisions of that treaty. ^[8]

The court, therefore, finds that derived jurisdiction was established over all the offences charged, on the basis of Section 5 and/or 8b(1) DCC, including the murder or manslaughter of the occupants of the aeroplane who were non-Dutch nationals under the second charge.

The court thus finds that, under the Dutch Criminal Code, the prosecutor has the right to proceed with prosecution.

4.4.3

Is there a limitation on jurisdiction under international law (immunity)?

4.4.3.1 Combatant immunity

The court has already considered above that the Netherlands has jurisdiction with respect to the charges under Sections 5 and 8b(1) DCC. Under Section 8d DCC, jurisdiction may nevertheless be limited by exceptions recognised in international law. As the case file indicates that the set of acts referred to in the indictment occurred in the context of a conflict, the question arises as to whether so-called combatant immunity may apply. This matter was not raised by the accused, and certainly not by defendant Pulatov. If combatant immunity does apply, however, it follows that the prosecutor does not have the right to prosecute. That might then apply to the cases of all the accused. For this reason, the court will address this issue in more detail.

Combatant immunity is an immunity relevant to the accused's possible status as a combatant in an armed conflict. Whether a person has combatant status is governed by international humanitarian law, also known as the law of war. Under international humanitarian law, persons who have combatant status are authorised to participate in hostilities and thus to conduct combat operations (combatant privilege). If these acts are performed in accordance with international humanitarian law, those persons cannot be prosecuted under criminal law for those acts, acts which in peacetime might be considered a crime. This is combatant immunity.

As indicated, combatant privilege is part of international humanitarian law. Therefore, combatant privilege - and the related combatant immunity - can only apply if international humanitarian law applies. International humanitarian law applies in the event of armed conflict.

International humanitarian law differentiates between international armed conflicts (traditionally conflicts between nations) and non-international (also called internal) armed conflicts. The provisions regulating combatant privilege apply only to international armed conflict and not to non-international armed conflict.

Therefore, the court must first determine whether an armed conflict existed at the time of the crash of flight MH17 and also whether it was international or non-international in nature. If the court finds that the conflict was non-international in nature, the accused are simply not entitled to this immunity. In this regard, the court notes that a non-international armed conflict must nevertheless be considered an international armed conflict if another country appears to be so heavily involved with the group with which a given country is fighting that the other country actually has overall control over that group. If the court finds that there was an international armed conflict, it must then ascertain whether the accused fall into the category of persons entitled to combatant privilege and, if so, whether they also meet the other conditions for it. The latter includes ascertaining whether the acts were carried out in accordance with international humanitarian law.

The court recalls expressly that the question of possible combatant immunity must be answered in the light of the facts and circumstances pertaining to the indictment period. Therefore, what is considered below refers to that period in 2014, unless expressly stated otherwise.

In order to make sense of those facts and circumstances, the court will first briefly outline the situation in that period in the area in which, according to the indictment, the offences charged occurred.

4.4.3.1.1 The situation in eastern Ukraine in July 2014

When flight MH17 crashed in eastern Ukraine on 17 July 2014, the situation in the region was far from calm. There had been conflict there since around April 2014, with fighting between the Ukrainian army on the one side and armed groups on the other. One of the main goals of those groups was to achieve some type of separation, or self-government within, the Ukrainian state, for Ukrainian territory or parts thereof. The court will refer to these groups as ‘separatists’, as this reflects their aims while avoiding any judgement regarding their origins or regarding the conflict itself. One such group consisted of several armed militia groups fighting under the name of the
Donetsk People's Republic, the DPR.

Ukraine was fighting against the separatists under the name Anti-Terrorism Operation (ATO). On 11 May 2014, the separatists in the Donetsk and Luhansk oblasts in eastern Ukraine actually declared independence, making the Donetsk People's Republic and the Luhansk People's Republic a reality for them. From that point onwards, the fighting between Ukraine and the separatists became more intense, with both sides using increasingly heavy weaponry.

Partly as a result of international pressure, a ceasefire was declared unilaterally by Ukraine on 20 June 2014, ushering in a brief period of relative calm in eastern Ukraine. The Ukrainian military resumed the ATO when that ceasefire expired on 1 July 2014. This led to fighting on two fronts: in the northeast and southeast of Ukraine. In the northeast, the Ukrainian army was able to advance successfully, and the separatists were driven southward in the first half of July 2014. Fighting in the southeast was much heavier however. Fighting there was long and fierce from the start of July, and was still ongoing on 15, 16 and 17 July 2014. This is the area where Pervomaiskyi is located, the site from which flight MH17 is alleged to have been shot down on 17 July 2014.

4.4.3.1.2 Was there an armed conflict? ^[9]

The court must first assess whether the conflict between the Ukrainian army and the separatists may be characterised as an armed conflict.

In the Tadić case, the International Criminal Tribunal for the former Yugoslavia (ICTY) provided a generally accepted definition of the two types of armed conflict mentioned above:

‘[…] an armed conflict exists whenever there is a resort to armed force between States [court: international armed conflict]
or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State [court: non-international armed conflict]
.’ ^[10]

Since the accused all held positions inside the DPR and stand accused of committing the alleged actions in their capacity as holders of those positions as part of the conflict between the Donetsk People's Republic and the Ukrainian armed forces, the court will have to assess whether the conflict between the DPR - which was not a State - and the Ukrainian armed forces can be characterised as
"protracted armed violence between governmental authorities and organised armed groups."

Duration and intensity of the violence

In order to make that determination, the court must, first of all, consider the question of whether there was ongoing armed violence of a certain intensity - in the sense of
protracted armed violence - on the territory of Ukraine when flight MH17 crashed, and during the period prior to that. In order to answer that question, the court considers the following factors which are apparent from the case file.

From April 2014 onwards, three battle fronts developed in eastern Ukraine, together covering a considerable area. Clashes between the Ukrainian armed forces (both air and ground forces) and the separatist groups, or members thereof, occurred almost daily, ranging from shooting incidents to aerial attacks.

The parties to the conflict both used firearms, including hand-held weapons, mortars, anti-tank mines, anti-personnel mines, portable air defence systems, missile launchers, tanks, armoured vehicles and artillery systems,
inter alia in combat. International organisations have estimated that, between mid-April and mid-July 2014, these hostilities resulted in some 1,000 casualties, including both civilian and military. Most of the civilian casualties reportedly were so-called collateral damage from fighting that took place in populated areas. Over 86,000 people, most of them women and children, were displaced and fled the region. According to international and non-international governmental and non-governmental organisations, numerous human rights violations also took place. The conflict in eastern Ukraine was a subject of repeated discussion in the UN Security Council.

Based on these factors alone, the court finds that the violence in eastern Ukraine, which began in April 2014 and was ongoing when flight MH17 crashed on 17 July 2014, lasted for such a prolonged period and was so intense that it can be said to be
protracted armed violence between Ukrainian armed forces on the one hand and separatist groups, including the DPR, on the other.

Organisation of the DPR

The next question facing the court is whether the DPR was sufficiently well organised at that time to be described as an ‘organised armed group’, as the above definition requires. In answering that question, the court considers the following factors.

The DPR was proclaimed as early as 7 April 2014 by armed individuals who were occupying the regional administrative building in Donetsk. Separatists in the Donetsk and Luhansk oblasts then declared independence on 11 May 2014 following referendums that were not recognised by Ukraine, making the DPR and the LPR a reality as far as they were concerned. Both of these republics appointed leaders and governments, and adopted their own constitution.

These constitutions set out the command structure and the assignment of duties within the organisation. They state, for example, that the Minister of Defence had direct responsibility for the armed forces at the operational level. Several militia groups, each with its own commander, operated under the banner of the Donetsk People's Republic. Interviews and intercepted telephone conversations indicate that most of these militia groups did indeed fall under the authority of the Minister of Defence, particularly as time went on, with the exception of the occasional militia group. Although it is not always clear how the different militia groups related to one another, and they did not always appear to share the exact same objectives, in the court’s opinion it is possible to state in general terms that all the militia groups were using weapons to fight for independence, or a greater degree of independence, from Ukraine. It is clear that, as soon as the DPR was founded, the organisation adopted the strategy of asserting its authority over a number of cities in eastern Ukraine - including Sloviansk, Kramatorsk and Donetsk - using armed force, and of setting up headquarters in those cities, such as in the building of the Ukrainian Security Service (SBU) in Sloviansk and, later, in Donetsk.

What is more, it is clear from decisions delivered by the so-called Military Field Tribunal of the DPR that the organisation adopted martial law. On several occasions, the DPR also cooperated in establishing cease-fire agreements, which similarly indicates a certain degree of organisation and of involvement in armed violence.

The court finds that, taking all these factors together, in the period prior to and during the crash of flight MH17, the DPR was organised in such a way that it can be said to have been an organised armed group.

The fighting between the Ukrainian army and the Donetsk People's Republic can therefore be characterised as an armed conflict.

4.4.3.1.3 The nature of the armed conflict

As the court has established that, prior to and at the time of the crash of flight MH17, there was intense fighting between Ukrainian armed forces on the one hand and organised armed groups including the DPR on the other hand, the criteria for characterising the situation as a non-international armed conflict have been met.

Next, the court turns to the question of whether there is any reason to believe that the role of any other country in the conflict between the DPR and Ukraine was such that this armed conflict, which was non-international in geographical terms, can be characterised as a conflict that was in fact of an international nature (internationalised) during the period in question. This may be the case if a certain degree of involvement by another country can be established. In this case, that would refer to a significant degree of involvement by the Russian Federation. In this case – due to the position and/or role of the accused within the DPR – the issue is not whether the Russian Federation may have used violence directly against Ukraine separately from the armed conflict between the DPR and Ukraine (
direct involvement by the Russian Federation), but rather whether the Russian Federation was involved in the DPR to such an extent that it can be characterised as having had overall control over the DPR. If the latter is the case, the non-international armed conflict between the DPR and the Ukrainian armed forces should actually be characterised as an international armed conflict and the question of combatant immunity may also arise. For that matter, in assessing whether the Russian authorities had overall control over the DPR, the court may also consider facts and circumstances that indicate direct involvement of the Russian Federation in hostilities, as will be discussed below.

In assessing the question of overall control, the court considers the following factors.

The background of members of the DPR

Several of the leaders of the DPR at the time were Russian nationals, and a number of them also had a background in the Russian armed forces. For example, the accused Girkin, at the time Minister of Defence of the DPR, is a Russian national, served in the Russian intelligence agency (FSB) and took part in the wars in Chechnya, Transnistria and Bosnia. His deputy in the DPR and ‘head of intelligence’ in the DPR, the accused Dubinskiy, is also a Russian national, has a background in the Russian military intelligence agency (GRU) and took part in the wars in Afghanistan, North Ossetia and Chechnya. It is not always clear, however, in what capacity the leaders within the DPR were involved in the DPR. Although several of them indicate that they were retired (reservists) in the Russian Federation and came to Ukraine independently and voluntarily, it is not clear whether this is actually the case or whether they were sent there by the authorities of the Russian Federation. Based on intercepted conversations, at least some of them appear to have had a close connection with the Russian Federation. For example, there was communication between the leaders of the DPR and Surkov, who was then the closest adviser to the Russian President Vladimir Putin, regarding appointments to several ministerial posts within the DPR. In an intercepted conversation recorded on 16 May 2014, Borodai said that the government (of the DPR) was about to be announced, that Moscow had surprised him, and that he would be appointed Prime Minister, much to the disappointment of another individual who had arrived in eastern Ukraine from Moscow. Borodai was indeed appointed Prime Minister of the DPR shortly after this intercepted conversation took place. On 15 May 2014, a conversation was intercepted between Borodai and the Chairman of the Supreme Council of the DPR regarding the appointment of a named individual to the post of Minister of the Interior; during that conversation, it was said that the candidate in question “suits Moscow” and that the “Moscow Generals” agreed. In another conversation later that day in which the same Chairman of the Supreme Council took part, he also said that the list of government posts for “the hero city” should not be made longer and that one named individual would certainly not sit on the Security Council because he had not been approved by Moscow. Furthermore, the person who at that time was Minister of Culture of the DPR stated in a witness interview that the Deputy Prime Ministers of the DPR came from Moscow and had significant influence over the functioning of the DPR.

Around the period to which the charges relate, several of the leaders of the DPR maintained ties with individuals from Russian intelligence agencies, the President’s office, and Kremlin advisers. Intercepted conversations regularly contain references to contacting “Moscow”. One example is a conversation between Dubinskiy and Bezler on 4 July 2014, in which Dubinskiy says that Girkin has been in touch with Moscow, and that Moscow does not want Sloviansk to be surrendered. The court also refers to a conversation that Girkin had on 10 July 2014 in which he told Dubinskiy that he was constantly on the telephone trying to get in touch with Moscow to report on the situation. Contact was maintained with various high-ranking individuals in the Russian Federation, sometimes using special communication channels (“the Glass”) and secure telephones supplied by the Russian Federation. For example, Borodai, the leader of the DPR, was in almost daily contact with Surkov between 20 June 2014 and August 2014. In an interview on 16 June 2014, Borodai referred to Surkov as “our man in the Kremlin”.

It is the opinion of the court that these references to “Moscow” and “the hero city” cannot be interpreted in any way other than as references to the seat of government, and are therefore understood to refer to the authorities of the Russian Federation.

Support

In their communications with senior figures within the Russian Federation, the leaders of the DPR regularly requested support such as the manpower, military equipment and requisite training. This support was indeed provided.

Statements made by representatives and reports by organisations such as NATO, the UN Security Council, the US State Department, the OSCE, and Human Rights Watch all mention the supplies and arms provided to the separatists from the Russian Federation. There are also references to convoys of military weapons which were said to have been brought across the border. This is consistent with what can be heard in intercepted conversations. For example, in one conversation intercepted on 12 June 2014, Dubinskiy says that it has become clear that Russia will provide support, including heavy weapons; in another conversation on 20 June 2014, Kharchenko tells Dubinskiy that the second convoy that came across the border is not what they were expecting; and on 15 July 2014, Girkin mentions expecting a shipment – a big thing that will be very good for “us” and which will need to be received at the border. Although intercepted conversations do not always reveal whether the weapons and supplies mentioned came from private providers or from the Russian government, the Minister of Culture of the DPR stated that Borodai forwarded requests for weapons from the Council of Ministers of the DPR to the GRU. Following approval by the GRU, the weapons were brought into Ukraine via the “Black Zero” (by which the court understands: illegal border crossing). The court also notes that NATO repeatedly called on the Russian Federation to stop providing support and weapons to the Ukrainian separatists.

Witness statements also mention funding for the DPR provided by the Russian Federation. For example, the person who at that time was Minister of Labour and Welfare of the DPR stated that the person who arranged the funding received it with the cooperation of the Russian President’s office and that the Russian Federation had been funding the DPR since at least the summer of 2014. Support coming from the Russian Federation is also mentioned in intercepted conversations. For example, in a conversation on 13 July 2014, one fighter for the DPR complained about the situation with kit and salaries, to which the response was that “they” are going to Rostov today for a shipment. The intercepted conversations do not generally mention the source of funding within the Russian Federation directly, other than to state that this was often routed via Rostov. The court concludes that this is a reference to the Russian city of Rostov.

Several witness statements mention military training programmes for DPR fighters which took place in the Russian Federation. This often involved training in Rostov (again, the Russian city). Intercepted conversations also include references to training programmes and a training camp. In one conversation that was intercepted on 2 July 2014, separatists talked about their urgent need for manpower and when the “men from the camp” will arrive, and on 3 July 2014, a fighter from the DPR said that the guys went “across the river” to train. Again, it is not always clear whether this training was provided privately or organised by or on behalf of the Russian authorities. However, one conversation by the person who at that time was Minister of Defence of the LPR, with which the DPR was cooperating, makes a clear reference to the role of the Russian GRU in this. In that conversation on 15 July 2014, the Minister was told about a training programme that was being provided for ten persons, to which the Minister replied that this should be done through the GRU. Some of the witness statements also reveal the involvement of Russian bodies in training programmes. For example, witness M58, who will be discussed later, stated that he was taken to the FSB and then to a camp in Rostov, Russia, where he received training. After that he was taken to the Donbas region.

Coordination and instructions

Of particular relevance to the question of whether there was overall control – regardless of the background of the members of the DPR and the Russian Federation’s support for the DPR – is whether the Russian Federation assumed a coordinating role and issued instructions to the DPR. It is the opinion of the court that the case file contains abundant evidence for this. As indicated previously, many intercepted conversations include reports to “Moscow” or people working for “Moscow” regarding the situation on the ground, such as setbacks and successes. A number of intercepted conversations also attest to planning on the part of the authorities of the Russian Federation. For example, in a conversation intercepted on 3 July 2014, Surkov informed Borodai that Antyufeev (court: who became Deputy Prime Minister for State Security of the DPR shortly thereafter) was on his way to Borodai and that “they” will be leaving for the south on Saturday so that they will be ready for combat. Later, on 11 July 2014, Surkov told Borodai that he had spoken to those in charge of “this whole military story” and that they had indicated that they were making preparations and they were going to accelerate everything. Additionally, on 10 July 2014, a leader of the DPR called to say that he had received an order in Moscow to form the first Cossack Regiment of Novorossiya.

Intercepted conversations also mention Moscow’s role in specific operations. In a conversation regarding Sloviansk intercepted on 4 July 2014, a DPR commander says there has been communication with Moscow, but that Moscow does not want Sloviansk to be surrendered. The DPR’s Minister of Defence, the accused Girkin, stated in an interview given in July 2014 that this order was not followed because no concrete support was forthcoming. In a telephone conversation on 18 July 2014, two members of the DPR discussed the encirclement of a Ukrainian brigade. One of the two interlocutors stated that he had been in contact with Moscow and that Moscow had indicated that the lives of the soldiers should be spared. In a similar vein, a series of telephone calls between Borodai and a Russian number made on 21 July 2014 is noteworthy. Borodai wanted to speak to the boss, but the boss was not available. Increasingly insistently, Borodai asked if the boss could call him back because he needed advice and instructions on how to handle certain aspects of the MH17 disaster, such as the refrigerated trucks and the black box. Borodai would also like to receive talking points for a press conference. Borodai noted at that point that he assumed that “our neighbours” would want to say something about this matter. It is the court’s opinion that the fact that Borodai talked about “our neighbours” and asked about “the boss”, even though he himself was the highest-ranking person within the DPR, confirms that the boss he was referring to was a representative of the authorities of the Russian Federation.

Direct participation of the Russian Federation

Reports and communications from various organisations mention shelling and artillery fire on Ukrainian territory, which is said to have been carried out from the Russian Federation. From the first half of July 2014 onwards, Russian soldiers would regularly move across the border and cross-border attacks would take place. One investigation by the
International Partnership for Human Rights indicates that there was artillery fire on a Ukrainian encampment close to the border with the Russian Federation in early July 2014, and in an official notice issued on 16 November 2016 the Netherlands Military Intelligence and Security Service also states that, between 11 July 2014 and 17 July 2014, rocket artillery units located in Ukrainian territory close to the Russian border fired on unknown targets in Ukraine. According to the report, the vehicle tracks and traces of firing found showed that artillery installations entered Ukraine from Russian territory. Witnesses have also provided statements regarding Russian equipment manned by Russian military personnel, which crossed the border, fired shells and then returned. Intercepted conversations also confirm that such strikes took place. For example, in a conversation between two members of the DPR intercepted on 12 July 2014, the interlocutors mention that Russia had finally begun to open fire on the Ukrainian armed forces. In another conversation intercepted on 16 July 2014, two members of the DPR - namely the accused Dubinskiy and Pulatov - discuss the problems they were having because they were under fire. Pulatov indicated that Russia could let loose, to which Dubinskiy replied that he has indicated positions on the map that will be sent to Moscow. In a conversation on 17 July 2014, accused Dubinskiy said that Russia intended to fire on their positions from its side. These conversations are just a few examples of a number of similar intercepted conversations in the case file. All of this indicates not only some form of parallel direct involvement but also, and more importantly, coordinated military activities by the DPR and the Russian Federation.

To date, the Russian authorities have denied any involvement in the conflict in eastern Ukraine during the period in question. However, with respect to the foregoing, the court finds that the case file certainly shows that funding, men, training, weapons and goods were all provided to the DPR by the Russian Federation. In addition, as of mid-May 2014 at the latest, the Russian Federation had a decisive influence on appointments to several senior positions within the DPR, including those of Prime Minister and Minister of Defence. This gave the Russian authorities considerable influence over the leadership of the DPR. The fact that the Russian Federation did indeed exercise influence is apparent from the fact that the Russian authorities were involved, at times directly, in coordinating and carrying out military activities even prior to the crash of flight MH17.

In view of the above, the court concludes that the Russian Federation exercised overall control over the DPR from mid-May 2014, at least until the crash of flight MH17. This means that the armed conflict, which was non-international in geographic terms, was internationalised and was therefore an international armed conflict.

The court therefore finds that on 17 July 2014, an international armed conflict between Ukraine and the DPR was taking place on Ukrainian territory, and that the DPR was under the overall control of the Russian Federation.

4.4.3.1.4 Combatant status

Now that the conflict between Ukraine and the DPR must be viewed as an international armed conflict, the provisions of international humanitarian law governing combatant status apply. The court therefore turns to the question of whether members of the DPR can claim such status.

Member of the armed forces of the DPR - Definition of combatant under Article 43, AP I

Pursuant to the provisions of Article 43 of the first Additional Protocol to the Geneva Conventions, members of the DPR can only be considered combatants – and therefore only have had the ‘right’ to take part in hostilities – if they were members of the armed forces of one of the combatant states, in this case the Russian Federation. In this respect, the armed forces of the Russian Federation can be viewed as being all the organised armed forces, groups and units under a command that is responsible to the Russian Federation for the conduct of subordinates. Furthermore, these armed forces must be subject to an internal system of military discipline which enforces, among other things, compliance with the rules of international law. Combatant privilege can only be claimed successfully if these criteria are met.

Firstly, the court notes that the DPR was not part of the official armed forces of the Russian Federation but rather – as outlined above – was subject to overall control by the Russian Federation. However, the characterisation of overall control is not, in itself, sufficient to conclude that it was under a command that was responsible to the Russian Federation for the conduct of its subordinates. For that, the Russian Federation would also have to accept that the DPR was part of the Russian Federation and take responsibility for the conduct and actions of the fighters under the DPR’s command.

The court concludes that this is not the case, because the Russian Federation has denied, and continues to deny to this day, having any control over or involvement in the DPR during that period, and the accused have also publicly denied being part of the armed forces of the Russian Federation at that time. Therefore, DPR fighters cannot be seen as part of the armed forces of the Russian Federation.

Since the DPR cannot be viewed as part of the armed forces of the Russian Federation, the members of the DPR also cannot be considered part of those armed forces. For that reason alone, then, they were not entitled to participate in hostilities and are therefore not entitled to immunity from prosecution. The court is therefore not concerned with any of the other requirements for the possible invocation of immunity, such as whether the accused complied properly with the provisions of international humanitarian law.

For the sake of completeness, the court notes that the literature argues that the criteria of Article 4(A) of the Third Geneva Convention (GC III) should also be considered when assessing whether accused are entitled to combatant privilege. The court finds that this is incorrect. That article is not concerned with combatants and their privileges and immunities, but rather with the status of prisoners of war.

4.4.3.2 Conclusion

The court concludes that there is nothing that points to the existence of any international law limitation on the jurisdictional provisions. The prosecutor, therefore, has the right to prosecute.

Since the condition set by the prosecution in its conditional application with respect to combatant immunity has not been met, that application requires no further discussion.

4.4.4

Did the prosecutor forfeit the right to prosecute?

4.4.4.1 Preamble

If procedural rules were not followed during the preliminary investigation (if procedural errors or omissions were made) and these can no longer be remedied, the court may attach consequences. A procedural defect refers to the failure to comply with written and unwritten rules of criminal procedure, including statutory and treaty provisions, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Those rules exist to make effective fact finding and trial possible, while being mindful and respectful of the rights and interests of all parties involved in the criminal proceedings. These are therefore fundamental rules that go to the heart of due process. It follows from the law and the case law of the Netherlands Supreme Court that the procedural errors or omissions in question are necessarily ones made during the pre-trial investigation, including violations of standards during detection of the crime. These procedural defects must also have had a decisive influence on the course of the investigation into and/or prosecution of the accused for the offence for which he is being prosecuted.

As the rules violated may be of differing nature and impact, there will be differences in the legal consequences to be attached to the violation. In increasing degrees of gravity, the following consequences may be attached to a procedural defect: its mere observation, the reduction of a sentence, the exclusion of evidence or the barring of the prosecutor from prosecution.

When a procedural defect is raised by the defence, the court must first assess whether the facts and circumstances underlying the defence’s argument have been demonstrated and constitute a procedural defect. Additionally, if a procedural defect has arisen, the court will have to make a substantiated decision as to whether and, if so, what legal consequence should be attached to the procedural defect identified. This in turn depends on the seriousness of the procedural defect, the interests of the accused that were violated as a consequence, whether a fair trial was jeopardised by the violation or whether it ‘merely’ constituted a breach of a rule or principle of criminal procedure that does not directly result in an unfair trial, and whether irregularities occurred that substantially affect the reliability and accuracy of investigation results.

When considering exclusion of evidence, the court may also consider whether that legal consequence outweighs the foreseeable negative effects of the consequence and whether it does not cause unacceptable prejudice to compelling interests such as establishing the truth, punishing the perpetrator of a serious criminal offence and respecting the rights of victims and their relatives, not least in view of the positive obligations to impose effective punishment arising from the ECHR. ^[11]

In general, the greater the seriousness of the procedural defect and its consequences, the graver the legal consequence the court can attach to it. It follows from Netherlands Supreme Court case law that the gravest sanction for a procedural defect, the barring of the prosecutor, can only come into play in very exceptional cases. The procedural defect will have to involve the officers tasked with the investigation or prosecution having seriously violated principles of due process, which violation, intentionally or with gross disregard for the interests of the accused, has prejudiced his right to a fair hearing of his case. It must also be an irreparable violation of the right of the accused to a fair trial that has not been or cannot be compensated for in a manner that meets the requirements of a proper and effective defence, leading to the court to conclude that “the proceedings as a whole were not fair”. ^[12] Prosecuting is in such a case plainly unreasonable. The less far-reaching sanctions of exclusion of evidence, reduction of sentence or mere observation must always be considered by the court first, before the most far-reaching sanction of barring from prosecution can enter the picture.

Defendant Pulatov’s counsel identified a large number of issues which, in the view of counsel, each in isolation, but certainly taken together, constitute such serious violations of statutory and treaty principles and principles of due process (and so are procedural defects), such that the defendant did not enjoy a fair trial. In the opinion of the defence, the prosecutor has forfeited his right to prosecute and the only proper consequence is that he be barred. The many issues raised by Pulatov’s counsel are enumerated in Parts I and II of the defence’s pleading notes and the submissions subsequently made in rejoinder. The arguments made involve not only a great deal of stratification, but also of conditional interconnection. Moreover, those arguments frequently refer forwards and backwards to arguments made in other places and at other times and in support of earlier and different positions. The court has therefore concisely summarised those arguments in its discussion of them.

The court distils from Netherlands Supreme Court case law that the key criterion it must apply when assessing the possible presence of procedural defects to which barring from prosecution may be attached is that of the “overall fairness of the trial” as formulated by the European Court of Human Rights (ECtHR). That overall fairness consists of two pillars that reinforce and complement each other. The first is that the court to whom the case (the indictment) is submitted for assessment examines the case and then, applying the relevant rules, openly, independently and impartially and without bias, arrives at a substantiated judgment in the interest of the accused and the other parties involved. The second pillar is that the accused, or his or her counsel on his or her behalf, has been able sufficiently to counter the evidence and the charges with whatsoever he wishes to raise against them and, to that end, has been able to conduct or commission the counter-investigations he or she desires. He must have had sufficient time and opportunity to do so. Thus, in order for there to be overall fairness to the accused, he or she must have been able to exercise the right to defend him or herself in an optimum fashion and also have the confidence that the court which is assessing his case will, following a thorough examination, arrive at a balanced and objective judgment. What constitutes overall fairness depends in part on the circumstances of the case. Overall fairness, in the opinion of the court, is not only determined by the interests of the accused; it also involves taking into account the legitimate interests of other persons involved in the criminal proceedings,
inter alia victims, relatives and witnesses and, in addition, the public interest in the investigation and punishment of the specific crime in question. How those interests should be weighed may also change as the criminal proceedings progress. Furthermore, existing imperfections may still be remedied over the course of the proceedings.

Whether overall fairness was achieved is, in principle, something which can best be assessed in retrospect. After all, at that time it will be known whether the court properly weighed all the interests involved and assessed their weight in relation to each other in a proportionate fashion. The assessment can then include the entire trial, as well as, not insignificantly, the final decisions made by the court and how the court’s choices and decisions were substantiated. When the issue of the prosecutor’s right to prosecute comes into question owing alleged procedural defects, there are two points in time when the court must assess whether overall fairness has been observed, first at the early stage in the proceedings when preliminary objections are raised, and second prior to delivering its judgment. The court necessarily is thinking ahead at these two points in time. This also means that, to some extent, the court will also have to assess its own conduct during the trial. After all, it is not only the choices made by the prosecution and the investigative services during the preliminary investigation that determine whether or not one can speak of overall fairness, but also whether and how the court approves, rejects or remedies those choices, the reasoning it uses in doing so and the way in which it accommodates the interests of all parties involved at trial.

The position of the Netherlands Supreme Court is that potential procedural defects that do not directly affect the right to a fair trial do not, in any case, meet the threshold for the potential legal consequence of barring from prosecution. Where appropriate, the court will consider whether any other, less grave, legal consequence needs to be attached to a procedural defect identified in this case. Irrespective of that, the court will still consider whether any accumulation of procedural defects that individually do not meet the threshold for barring from prosecution may collectively lead to the conclusion that the accused did not receive, or was no longer receiving, a fair trial.

4.4.4.2 Stance of the prosecution in the proceedings

Under the heading ‘Stance of the prosecution in the proceedings’, the accused Pulatov’s defence counsel submits two main arguments that should lead to the barring of the prosecutor from the prosecution. These concern the violation of the presumption of innocence (in particular) in media statements and the ‘summons without prior notice’ of defendant Pulatov with all the resultant consequences for the trial.

Violation of the presumption of innocence through disclosures

Counsel of defendant Pulatov argued that almost no-one could still believe in the innocence of the defendant or his three co-accused because the Joint Investigation Team (JIT) and the Public Prosecution Service, as well as other authorities, ^[13] had, repeatedly and in categorical terms, publicly given their opinion on the crimes allegedly committed regarding flight MH17 and on who the alleged culprits were. Counsel stated that at one point defendant Pulatov and his three co-accused were named as the perpetrators of these crimes and their pictures were displayed in front of the entire world’s press. In doing so, the defence has repeatedly indicated, in more or less explicit terms, that this loss of the presumption of innocence must also apply to the judges in this case.

The court considers it a given that the JIT and the Public Prosecution Service expressed themselves in quite categorical terms at several press events prior to the trial about what they believe happened to flight MH17. Up until the press conference on 19 June 2019, this consisted of public statements about which weapon was used, originating from where, fired from where and by which party in the conflict. At the press conference on 19 June 2019, these statements were coupled with the names and images of the four accused in these criminal proceedings, with the clearly repeated announcement that, as suspects, these individuals would be prosecuted for the crimes. When doing so, reference was also made to the presumption of innocence. The statements at all these press events were made by senior representatives of the Public Prosecution Service and the JIT.

The court agrees with counsel for defendant Pulatov that the presumption of innocence requirement in Article 6(2) ECHR extends not only to the court, but also to other public authorities, including the Public Prosecution Service and the JIT. However, the court is of the opinion that it remains a matter of debate whether the statements made during the press conferences by senior representatives of the Public Prosecution Service and the JIT constitute a violation of the presumption of innocence under Article 6(2) ECHR. After all, even if this were the case, it does not mean that the right to a fair trial enshrined in Article 6(1) ECHR has also been violated. That would require that the court hearing the case (and all other judges who could potentially hear this criminal case) had been so influenced by these statements that they could no longer make an unbiased decision on the matter. Quite apart from the fact that this bar is set very high by the ECtHR for a panel composed exclusively of appellate judges, and that, at least in the vision of the court, no such influence has ever been assumed by the ECtHR for appellate judges, this court was aware from the outset in broad terms of what had already been stated in the media prior to trial. This was also explicitly stated by the court in its introduction on the first day of court. Over the course of the trial, counsel for defendant Pulatov repeatedly pointed out and issued warnings about all the media coverage, such that for this reason alone it may be assumed that the court was continuously aware of it. The court distanced itself from this media attention. There is therefore no objectively justifiable fear of bias on the part of the court, let alone concrete facts presented by counsel for defendant Pulatov to demonstrate such bias. Moreover, it could only be assessed in retrospect, by another court, whether this court may have been biased, taking into account the course of events at trial, how the evidence was interpreted, the court’s reasoning, and the outcome of these criminal proceedings. Therefore, any violation by the Public Prosecution Service and the JIT of Article 6(2) ECHR does not meet the threshold to bar the prosecution for violating Article 6(1) ECHR.

The foregoing also applies to statements made in the press or elsewhere by other senior public officials. The court agrees with counsel for defendant Pulatov that members of the Dutch House of Representatives and the Prime Minister of the Netherlands, among others, have expressed themselves in fairly categorical and unsubtle terms about the causes of MH17’s fate. However, those statements – insofar as they pertained to this criminal case or the accused – cannot be attributed to the prosecution and, like the statements made by the prosecution and the JIT, did not contribute to or influence the court’s decisions over the course of the trial or on the outcome of this case.

In a similar vein, the court further notes on this point that the contention of counsel for defendant Pulatov that counsel for the relatives adopted the JIT scenario without any critical note and thus had little regard for the presumption of innocence, can hardly be blamed on counsel for the relatives. Indeed, this refers to the commentary provided by counsel for the relatives on the claims for compensation filed by the relatives, which are only eligible for adjudication if the charges are proven. The relatives cannot be expected to conduct their own investigation into the offences to which their claims are linked. So it is only logical that they should assume that that which has been charged will be proven. Needless to say, even this position taken by counsel for the relatives gave the court no premature thoughts regarding the outcome of the case.

Communicating the full names and other personal details of the accused, combined with displaying their photographs, at a press conference broadcast globally goes beyond the type of dissemination of information that is usual for criminal cases. Irrespective of the influence this may have had on the general public and the impact that this may have had on the personal lives of the accused, these are not factors that influenced the court, nor when taken in conjunction with the aforementioned statements by the Public Prosecution Service and the JIT about the alleged circumstances surrounding the crash of flight MH17. In addition to the arguments already mentioned above, another relevant factor is that the court knows the identity of the persons to be prosecuted prior to any trial. This is in fact always the case before the start of the hearing, at which time the court is informed even further about the identity and personal details of, and personal information about, the accused than the public was at the press conference. After all, the court receives the prosecution file containing such personal information. Thus, the court is even more extensively and broadly informed about the accused than the general public. The professional judges are in no way prejudiced in their judgments by these disclosures. Therefore, the fact that in the present case this information was openly shared with the public via a press conference did not influence the court in any way, let alone lead the court to adopt a position
a priori on what allegedly happened to flight MH17 and on the involvement or even the guilt or innocence of these particular accused. There is no indication from the manner in which the court arranged, conducted or completed the trial that the court had already adopted a particular position on the case.

However, notwithstanding the foregoing, in the view of the court, the manner chosen by the prosecution and the JIT to communicate on the fate of flight MH17 and announce the suspects in these criminal proceedings does give pause for thought. Although this method of communication and these announcements did not affect the court’s objectivity, in the court’s view they did contribute to shaping public opinion on this criminal case. This is partly due to the close interrelationship in this case between the statements about what allegedly happened to flight MH17 and the wording of the charges against the accused. In that sense, stating the personal details of the accused at the press conferences and showing their photographs might quite easily be considered to be a potential infringement of the right to privacy protected under Article 8 ECHR. Such an infringement is, however, permissible if it is provided for by law and is necessary in a democratic society. However, the prosecution’s explanation is not one that immediately appears to satisfy the requirement of necessity, nor the proportionality and subsidiarity to be respected in that regard.

Informing the general public and relatives of the intention to prosecute is considered by the ECtHR to be an important and justifiable purpose in itself. ^[14] The court certainly recognises this interest in a case on the scale of and with social impact of the MH17 case. In the view of the court, however, it is not readily apparent that this provision of information could not have been achieved other than through what appear to be carefully selected press events broadcast worldwide, and during which, not only were categorical and definitive statements made by senior investigating and prosecuting authorities about what had happened to flight MH17, but personal details and photographs of the accused were also revealed. The right of the relatives, in particular, to be apprised of the outcome of the investigation, the reasons why and the circumstances under which the alleged crimes were committed, as well as the identity of the suspected perpetrators, is undeniable. However, throughout the preliminary investigation phase, the Public Prosecution Service was in a position to communicate directly with the relatives and to keep them informed of progress, without recourse to the media. The court is at a loss to explain why, when it came to announcing the initiation of prosecution, that was no longer possible or preferable, but instead it was necessary to inform them all at once. Moreover, it is unclear why informing the general public required the names and other details of the accused, let alone their photographs, to be released. After all, the only message that needed to be released to the general public at that stage was that suspects were going to be prosecuted. This could have been done with less information, such as the number of suspects and possibly their nationalities. The additional details were of no added value when it came to informing the general public, even though the caveat that they were suspects not perpetrators was stated explicitly and repeatedly, contrary to the account of counsel for defendant Pulatov, as mentioned above. The additional information concerning the suspects was of added value for the relatives, but they could have been informed of it in other ways.

At the same time, however, the court also notes that three of the four accused raised no objection to this course of action, let alone indicated which of their specific interests had allegedly been harmed. The court further notes that, more or less simultaneously with the announcement that the suspects in question were to be prosecuted, international alerts were issued for them and so they were placed on wanted lists together with the usual photographs and personal details, as was to be expected in this case. A simple internet search immediately yields the names and photographs of the four current accused. Given the huge public interest and the active attitude of the media in this case, any search by those means would have quickly revealed the identity of the accused and their details. In the opinion of the court, therefore, the eventual violation of the privacy of the accused as a direct consequence of the proactive and ample provision of information by the JIT and the Public Prosecution Service at the aforementioned press conference alone, was limited. Moreover, as that infringement was of no consequence for the fairness of the trial within the meaning of Article 6(1) ECHR and the consequences for the accused’s privacy were not solely a result of this procedural error, the procedural error cannot lead to the prosecutor being barred from prosecution. The court will, however, return to this matter when addressing sentencing.

Neither is the court’s opinion regarding whether the prosecutor has the right to prosecute altered by the interview in the leading Dutch newspaper NRC Handelsblad with the leader of the team of prosecutors investigating the flight MH17 disaster, which appeared a few days after the prosecution made its final submissions and sentencing request to the court. Although that interview also contains very categorical and sometimes even unnuanced statements by the team leader, which were made outside court while criminal proceedings were ongoing, in essence they are no more than a repetition of what the prosecution had said in court shortly beforehand in its final submissions and sentencing request, which could be followed and watched in its entirety on the livestream. In the opinion of the court, the repetition of those statements at that moment in a newspaper interview will have had little effect on public opinion that had not already been achieved by the prosecution’s final submissions and sentencing request in court.

In the opinion of the court, however, the situation regarding the application launched on the internet by the prosecution on 18 May 2022 is different. This application, entitled The MH17 Criminal Files, “is intended to offer the next of kin and the wider public detailed and accessible information from the case file.” The website reads “In this publication you can read, hear and see what evidence there is, among other, in the case file.” The court has already expressed its surprise in the courtroom at the launching of this application, because of the timing and the way in which it was placed online. In relation to the preliminary matters, the court adds the following.

The way in which the application was laid out and designed meant that it was not a spontaneous instrument, but one that took a great deal of time, effort and preparation. As such, its launch was a planned action by the prosecution, and the timing of its launch must have been carefully chosen. For these reasons alone, sharing the contents of the prosecution file that was still under review by the court (and therefore also the ‘property’ of the court, and no longer of the prosecution) with a wide audience, in this planned manner and in part using documents from the case file, is contrary to the principles of due process. No one other than the court to which the case has been assigned can or may decide on the dissemination or sharing of the case file in any way. The prosecution should be aware of this, which is why the only possible conclusion is that the prosecution deliberately acted in contravention of this principle. This is all the more true given that, less than two hours before this application was placed online, the court had lifted a restriction on the provision of information to the relatives, who are a party to these proceedings no less, that had been in place until that point. After the restriction was lifted, however, the explicit condition still applied that the documents were only to be used for the criminal procedural purposes for which they were intended. In that light, therefore, the application itself, and above all the timing of its launch and the inclusion of substantive documents, must be seen as being in blatant disregard of an express decision of the court. Moreover, the application lacks any qualification or any reference to the detailed arguments and positions presented by counsel for defendant Pulatov,
inter alia regarding the probative value of and degree to which certain documents in the application might be usable by the court. The application has nothing to do with the prosecution’s duty to inform the public in general, and victims and relatives in particular. After all, that duty had already been comprehensively fulfilled at the appropriate time: the hearings for the prosecution’s final submissions and sentencing request. Therefore, the court cannot but view this application as an unsubtle attempt by the prosecution – what is more, outside the court – to convince the world that the prosecution’s case was right. The court is therefore of the opinion that the prosecution cannot reasonably claim that the publication of this application could serve any interest protected by enforcement under criminal law, let alone that this decision was the result of a fair and reasonable balancing of interests. It was unnecessary and gravely detracts from the magisterial performance that can and must be expected of the prosecution.

Nor did the prosecution choose to publicly account at the trial for why this application was launched. In a very brief email message to the defence counsel of defendant Pulatov, who rightly requested clarification and explanation, the prosecution merely indicated that it saw no reason to go back on its decision to launch the application. The court is therefore of the opinion that the launching of this application violates the principles of due process.

Although the court is extremely displeased by this action on the part of the prosecution, which persists to this day as the application continues to be maintained, the court did not allow this to affect its unbiased and unprejudiced approach to and assessment of the prosecution file and the charges, nor did it trammel counsel for defendant Pulatov’s ability to present a defence in these criminal proceedings. For this reason alone, this procedural defect does not meet the threshold of an infringement of the accused’s and his co-accused’s right to a fair trial that can no longer be remedied, and therefore it cannot lead to the prosecutor being barred from prosecution. The court will, however, return to this matter when addressing sentencing.

At this point in the judgment, it is sufficient to conclude that the disclosures made by the prosecution and others provide no basis for barring the prosecutor from prosecution.

“Summons without prior notice”

In summary, counsel for defendant Pulatov asserted that Pulatov did not receive a fair trial because he was summoned without notice by the Public Prosecution Service, without first having been informed of any allegation against him. The defence refers to this as “summons without prior notice”, while the prosecution refers to the timing of the summons. However, both mean the same thing: issuing a writ of summons without giving advance notification of the existence of an allegation.

It is not in dispute that each of the accused in these criminal proceedings was the subject of an official document setting out allegations that long predated the time at which they could have first learned that they had been identified as suspects, namely by following the aforementioned press conference of 19 June 2019 or by reading communications from the prosecution on the matter, immediately before the start and after the end of that press conference, using the social media accounts and/or telephone numbers attributed to them. In those communications, the specific allegations against the accused were relayed or the first time, the fact that a summons would be served on them was announced and they were invited to respond to the allegations. Formally, however, the accused were not summoned until later in 2019, when the writ of summons was sent to their respective national authorities, with a request that it be served on them and a request to interview them regarding the charges contained therein. That is formally the moment at which they became aware of the allegations against them. ^[15]

Counsel for defendant Pulatov has submitted that this rather unusual method of issuing a summons did not allow the defendant to be questioned at the preliminary investigation stage, at which time his position on these matters could still have influenced the decision on whether or not to serve the summons. Furthermore, as a consequence, the defendant was unable to have counter-investigation conducted by the investigating judge
in camera , contrary to customary practice. Moreover, as a consequence, to the detriment of the defendant, a different framework for assessing requests for investigation was applied than would have been the case if the investigation had been conducted by the investigating judge, and, as a consequence, he was denied access to the file for longer than necessary. As the defendant was thereby deliberately excluded and remained excluded for a long period of time, the principle of equality of arms was violated, and defendant Pulatov was not given a fair trial. At the very least, the principles of due process were violated to such an extent that this should result in the prosecution being barred.

The court first states – as counsel for defendant Pulatov has also submitted – that ‘summons without prior notice’ is a power that the prosecution may use based its prosecutorial discretion, and that this method of summoning is not ‘prohibited’ or liable to sanction under the DCCP. The decision whether and how to prosecute is a discretionary matter, which lends itself only to a very limited degree to any substantive judicial review. With respect to the specific allegations made, it is clear that the prosecution did not act in contravention of any of its own guidelines or policies; after all, issuing a writ of summons is the rule in the event of offences under Section 168 DCC and Sections 287 and 289 DCC. Moreover, no commitments were made by the prosecution prior to the summons regarding investigations to be conducted first by the defence. Therefore, contrary to the examples cited by counsel for defendant Pulatov, ^[16] the principle of legitimate expectations was not violated. This does not alter the fact that the method of summoning in the context of the entire investigation and prosecution could, under some circumstances, constitute a procedural defect, to which legal consequences could be attached by the court pursuant to Section 359a DCCP.

It was argued by counsel for defendant Pulatov that the prosecution deliberately issued writs of summons “without prior notice” entirely for the purpose of restricting the defendant/the accused in his/their ability to proffer a defence, and that for that reason the prosecutor should be barred from prosecution. The court will discuss in greater detail below the consequences of the “summons without prior notice” for the options available to the defence, and the motives of the prosecution in opting for this form of summons, but, with reference to the considerations outlined above, the court first of all states that the court does not regard this form of summoning, as such, to be a procedural defect.

It is true that summoning the accused in this manner prior to the public hearing of the case did not allow him to have investigation of his own done in the relative privacy of the office of the investigating judge. Counsel for defendant Pulatov correctly submitted that arriving at a more balanced and complete investigation was specifically a goal the lawmakers intended to achieve by introducing the Position of the Investigating Judge (Further Measures) Act. ^[17] The lawmakers specifically intended to ensure greater involvement by a judge in the preliminary investigation for the purpose of establishing checks and balances, given the often conflicting interests of parties to the proceedings. However, the introduction of this law did not deprive the court hearing the case of the opportunity to conduct or commission additional investigative work, thus guaranteeing checks and balances. That is also true in this case. Counsel for defendant Pulatov was given the opportunity by the court, and took full advantage of that opportunity, to submit requests for investigation to the court with a view to responding to the results of the criminal investigation by presenting whatever it deemed necessary. The court gave counsel for defendant Pulatov every opportunity to do so and set ample deadlines for filing these requests for investigation.

Contrary to the assertions of counsel for defendant Pulatov, the court applied no other criteria in assessing the requests for investigation submitted than would have been the case if this investigation work had taken place under the direction of the investigating judge pursuant to Section 182 DCCP. In fact, even prior to the commencement of the trial, and following consultation with counsel for defendant Pulatov and the prosecution, the court explicitly determined that the defence would not have to make requests for further investigation until the June 2020 series of court hearings, which requests the court would then assess based on the necessity criterion, but in such a way that the outcome would not be substantially different from if the ‘interest of conducting a proper defence’ assessment criterion were applied. In so doing, the court explicitly referred to the principle of equality of arms, which is an integral part of the right to a fair trial. In June 2020, counsel for defendant Pulatov filed the first part of the defence’s requests for investigation. Owing to the outbreak of COVID-19 and the consequent sudden restrictions on communicating with their client, the court allowed defence counsel to file further requests for investigation at a later date. In its interlocutory decision dated 3 July 2020, the court ruled on part of the requests for investigation submitted, having applied the stated criterion, but also deferred a decision on a large part of them because, in brief, it deemed it important in order to be able to assess them that it have knowledge of defendant Pulatov’s position and insight into the remaining requests for investigation to be submitted and the justification underpinning them. At that time, defendant Pulatov had not yet commented on his stance in this trial. Depending on whether or not consultation with defendant Pulatov was required, those remaining requests could be filed in September or November 2020, respectively, according to the decision of the court. Due to the need identified by counsel for defendant Pulatov to modify and supplement its wishes and requests with regards to investigations in the light of discussions with and input from defendant Pulatov, in September 2020, the court granted the defence even more time than previously promised, and the remaining requests for investigation were not submitted until the hearing in November 2020. The court ruled on these and on the previously postponed requests on 25 November 2020, explaining that, in assessing the requests, the primary consideration had been their relevance, rather than the time the requests were filed as was customary under case law at that time. That method of assessment, which is more favourable to the defence, is in line with the criterion employed by the ECtHR in its ruling some months later in the so-called Keskin case. In respect of this point, too, the defendant’s interest was not prejudiced in any way. As indicated above, a long period of time was allowed for case management in this court case, during which counsel for defendant Pulatov exercised their rights extensively and were given, and took, ample opportunity to present the defence’s view on many points.

Therefore, not being involved in the preliminary investigation was at worst less practical, but, in view of the extended and indeed further prolonged pre-trial phase held by the court, during which counsel for defendant Pulatov was able to present all their requests for investigation to the court in full, as would have been the case with the investigating judge, it can hardly be considered a procedural defect that negatively affected the defence rights of the defendant.

The court also extended the opportunity to raise preliminary objections until the first day of the series of hearings held in June 2020. Ultimately, however, counsel for defendant Pulatov did not avail itself of this opportunity, rather it indicated at the hearing that day that it had decided not to raise any preliminary objection regarding combatant immunity at that time, but might raise that defence at a later date. In doing so, defence counsel explicitly forfeited the opportunity to raise preliminary objections The court notes that many lines of defence of a potentially preliminary nature were ultimately raised during oral argument, to which the court responds in this judgment in the context of the preliminary matters. In that respect, too, therefore, counsel for defendant Pulatov was not prejudiced in any way.

Furthermore, the court fails to see how defendant Pulatov could have been disadvantaged by having to submit his requests for investigation in open court rather than in the privacy of the office of the investigating judge. The number of requests for investigation, the generous use of the opportunities to file them through to rejoinder and the manner of explaining those requests do not attest to any perceived limitation in that regard bearing on counsel for defendant Pulatov. Moreover, explaining the requests for investigation at the hearing also allowed the defence to bring its positions to the attention of the public. In addition, from the very first court day, the defence was free to request an open referral of future requests for investigation to the investigating judge for assessment, or to request that the trial be held in closed session, at least for that phase of the proceedings given the interests that the defence argued needed to be protected. Furthermore, counsel for defendant Pulatov could have commented on the use of the livestream at that stage of the court case. However, defence counsel failed to take any of these actions.

Counsel for defendant Pulatov also complained that he had not been invited for questioning until after his summons. This is in fact true of all the accused. The court notes that the prosecution did not submit a request for mutual legal assistance to the Russian Federation to question the accused prior to the summons. ^[18] It was argued that, in light of previous statements by and responses to requests for mutual legal assistance by the Russian authorities, the likelihood of the timely execution of a request for questioning was extremely low from the outset. That argument fails to convince the court that it was therefore not worthwhile for the prosecution to make the necessary efforts to secure a proper interview. This applies all the more because just such a request, made
after the summons with regard to defendant Pulatov, was executed without any problems. This meant that the accused did not have the opportunity to give their perspective on the charges against them, or on the material the prosecution had gathered in support of those charges, prior to their summons. As a consequence, the accused were unable to dissuade the prosecutor from issuing a summons. This may threaten the right not to become further entangled in criminal proceedings.

At the same time, the court also notes that, except for defendant Pulatov, the accused did not comment on this point, thereby failing to specify an interest of theirs that was allegedly affected. On 13 November 2020, defendant Pulatov complained for the first time that he had been summoned “without prior notice” and without an invitation for questioning, but at that time the argument was made only in the context of the assessment criterion to be applied to requests for investigation, and not with the conclusion that the “summons without prior notice” meant that he was unable to prevent criminal proceedings being brought against him. It was only when presenting its oral submissions later in the trial that that the defence attached that inference to the failure to question him earlier. Counsel for defendant Pulatov is of course at liberty to make that argument, but it is surprising in light of the assertion that, as a consequence, the defendant was wrongly exposed to a public criminal trial where very grave charges were levied against him. After all, prevention is better than cure. The argument presented by counsel for defendant Pulatov, that complaining was futile because, after the presiding judge had set the date, and after the “summons without prior notice”, the possibility of a writ of summons not being issued was purely theoretical, is incorrect. After all, the alleged interest of a proper defence in conducting preliminary investigation could have been invoked by defence counsel in a request to the prosecutor to withdraw the summons. Merely stating that this possibility was futile without attempting it is, in the opinion of the court, insufficient to show that the defendant’s own position, that serious harm was suffered as a result of the prosecution’s action, is valid. Moreover, the fact that the presiding judge had already set a date for the start of the trial, at the request of the prosecutor, in no way diminishes that possibility. Indeed, given its dual nature as a summons and an indictment, a writ of summons also states the date of the first hearing. In other words, before a writ of summons can be issued, that date must have been set. Therefore, for that very reason, a request for the withdrawal of a writ of summons can only be made once a date has been set.

Furthermore, the court notes that defendant Pulatov was given the opportunity to be questioned before the court proceedings began. However, at that interview, which took place under the direction of the competent authorities of the Russian Federation, in the presence of his Russian counsel, and on the advice of his Dutch lawyers, who were already assisting him at that time, defendant Pulatov stated emphatically that he was invoking his right to remain silent. Defendant Pulatov did, however, indicate that he wished to testify before a Dutch court. The way in which this could be achieved without defendant Pulatov running the risk of being taken into pre-trial detention (an interest which cannot in fact be respected in law) was discussed at length, on several occasions, in court. Nevertheless, defendant Pulatov in fact never took advantage of the opportunity to be questioned by a Dutch judge. Finally, as already touched upon above, counsel for defendant Pulatov could also have raised a preliminary objection on this point, which, if it had succeeded, might well have resulted in no further public hearing of the criminal case against counsel’s client.

It must therefore be noted that defendant Pulatov did not avail himself of the opportunities offered to him. This was his own choice, and cannot be attributed to the prosecution. Just like the other accused, defendant Pulatov himself deliberately chose not to appear at trial and to rebut the charges against him as he saw fit in court, nor did he avail himself of the opportunity presented to him to be interviewed by the investigating judge. The court concludes that the defendant did not avail himself of several opportunities early on in the trial to convey his account of events thoroughly, with the opportunity to have his testimony considered as to whether the trial against him should proceed. Moreover, the court can but note that, after defendant Pulatov gave his account in the manner of his choosing, and after further investigation was conducted on that basis, the prosecutor still demanded a sentence of life imprisonment, such that it is not plausible that, even if he had been invited for questioning prior to the summons and he had already given his account at that time, this would have prompted the prosecutor to refrain from summons and prosecution.

Taken together, all this leads the court to conclude that, under these circumstances, there can be no question of a procedural defect within the meaning of 359a DCCP, as a result of which his defence was prejudiced or he could no longer receive a fair trial.

Finally, the court discusses the argument submitted by counsel for defendant Pulatov that, as a result of the “summons without prior notice”, the defendant was denied access to procedural documents for longer than necessary. The court notes that the prosecution did refer to this point in reply, but did not respond to it. Arguably, reading between the lines of the positions of the prosecution that the failure to provide documents from the prosecution file in a timely manner was not so much a consequence of, but rather a reason for the “summons without prior notice”. Be that as it may, it is noted that, after counsel for defendant Pulatov announced that they would be acting in this case, said counsel received the prosecution file at the same speed as the court. In other words, according to the letter of the law, there is no question of any impediment to inspection of case documents as referred to in Section 30 DCCP. After all, said documents were provided to counsel for defendant Pulatov upon request, once it was clear to defendant Pulatov that there were charges against him, ^[19] and there was no objection made with respect to withholding of case documents. Those documents formed the basis for the trial and the input of the defence at trial. As already indicated, counsel for defendant Pulatov was given ample time and opportunity therefor. The court found no resultant disadvantage.

Taking all of the above into account, the court concludes that there is no evidence that the prosecution could not or should not have arrived at the decision to issue a “summons without prior notice” after weighing up all interests in a reasonable fashion. After all, any disadvantages to the accused associated with the “summons without prior notice” could have been challenged by the defendant himself before the start of the trial or were remedied in the course of the court proceedings by the manner in which the court directed. Accordingly, there are no procedural defects, or such defects were remedied during the court proceedings, or remedying them was frustrated by choices made by defendant Pulatov and/or counsel for defendant Pulatov. Under these circumstances, the court concludes that there can be no question of attaching any consequence to any defects, or that the mere observation of them suffices.

There is therefore no ground in the “summons without prior notice” for barring the prosecution.

4.4.4.3 Investigation and case file

Biased approach to the investigation and prosecution file

Counsel for defendant Pulatov argues that the Public Prosecution Service did not maintain a consistently objective and critical view during the investigation into the circumstances of and those responsible for the MH17 disaster. It claims that this has resulted in the investigation and the prosecution file being biased in their approach and content (confirmation bias and tunnel vision) because they were conducted, compiled, and/or structured in a biased and leading manner. It further claims that certain matters were not, or could not, be investigated. A trial that uses, and is based on, the results of such an investigation would not meet the standards and minimum safeguards of a fair trial. According to counsel for defendant Pulatov, these procedural defects should lead to the prosecution being barred.

First of all, the court notes that it is only natural that a disaster on the scale of, and with the impact of, flight MH17 would immediately receive considerable attention and interest from the general public, the media and politicians, in part due to its location and the situation there. As long as there is no clarity about what happened, why it happened, and who is or can be held responsible for it, that interest will persist. This proves true to this day. The context and nature of the disaster have also inevitably led to the involvement of multiple domestic and foreign agencies, investigative or otherwise.

For example, in the event of an incident involving an aircraft, it is standard practice for the DSB to become involved; indeed, it is the DSB’s statutory duty to investigate such incidents. Lawmakers have recognised that a Dutch Safety Board (DSB) investigation may coincide with a criminal investigation. The fact of the matter is that criminal aspects may play a role in the cause of an air disaster, resulting in an investigation pursuant to Section 132a DCCP. Lawmakers have set statutory provisions ^[20] that are to be applied in the event of such a concurrence, and there are rules in place to ensure enhanced coordination between the two organisations when they are investigating the same incident. ^[21] Essentially, these provisions stipulate that the investigation carried out by the DSB must take place separately from the investigation of the Public Prosecution Service, and that, in principle, the results of the DSB investigation may not be used for purposes relating to criminal law or procedure, subject to a few exceptions. The court found no evidence that those provisions were not followed. The Public Prosecution Service conducted independent investigations, and, insofar as the (publicly available) results of the DSB investigation have been entered in the case file, the court will not consider them as evidence, or will consider them only where this is expressly permitted under the DSB Act. The court is familiar with the restrictions imposed by the DSB Act on the use of such information in a criminal case. The court itself also referred to this matter at trial, and the content of those documents was not addressed when the substance of the case file was presented in court. Insofar as inclusion of this material in the file could be considered a procedural defect, it has therefore been remedied. This observation will not have any legal consequences.

The defence’s assertion that the Public Prosecution Service erred in terms of procedure because it was guided by statements made by the SBU immediately following the crash of flight MH17 lacks factual basis. While it is true that possible causes for the flight MH17 disaster were mooted by or via the SBU, the mere fact that this occurred and/or that they were inconsistent in their conclusions cannot in any way be held against the prosecution. The prosecution conducted its own investigation, from which it drew its own conclusions, which were submitted to the court for assessment. The Public Prosecution Service provided reasons whenever it used material with potential probative value that had been provided by or via the SBU. In so doing, the prosecution explicitly considered the questionable reputation that the SBU had in 2014 according to sources, which prompted it to exercise caution and to conduct verification and validation studies.

Counsel for defendant Pulatov has asserted that, given the SBU's reputation as an investigatory body which does not take human rights and conflicts of interest seriously, even cooperating with the SBU and including material from it in the file constitute a procedural defect resulting in unfair proceedings for the accused and therefore should lead to the prosecution being barred. However, that mere assertion can in no way justify such a finding and the consequence attached to it. Even if this broadly-worded position were correct, it would be a wholly inadequate basis on which to contest the reliability of specific items of evidence in general terms. After all, even information from questionable sources can be accurate and reliable, although it requires extra caution and investigation. Nor does the mere presence of material from such a source in the file render the investigation as a whole unfit as basis for a fair trial, as argued by Pulatov’s defence. After all, it is not an established fact that the witnesses in question were unable to give a statement freely, but at best a ‘real possibility’, to use the words of the defence. Moreover, in this sizeable file, composed of a large variety of potential items of evidence, there are, at most, a few items the reliability of which, if used in evidence, would have to be established and substantiated. Therefore, if the court makes use of evidence introduced via the SBU, it will do so with due caution, in accordance with the applicable provisions.

If and to the extent that the prosecution has used (preliminary) findings from other sources, such as the DSB investigation, information from journalists and citizen journalists, and/or suggestions made by other(s) regarding the cause of the MH17 disaster, the court has found that they have, at most, used them as a lead for a possible line of enquiry. That is not, in itself, prohibited or contrary to any principle of due process, but when it occurs it can, at best, only result in evidence in the criminal case if that evidence meets the requirements of the law and has been lawfully obtained by means of its own criminal investigation. This is an aspect addressed by the court when discussing the evidence that it has used. It cannot, however, result in any procedural defects to which consequences are attached.

The court sees the assertions of confirmation bias and tunnel vision made by counsel for defendant Pulatov in the same light. The court understands that the assertions relate to the prosecution, but apparently also to the court. The substantiation of those assertions is - largely - the same as that provided for those defence arguments discussed previously with respect to Article 6(1) ECHR. For this reason alone, these assertions fail to hold water. These assertions also fail to appreciate the responsibility the court has with respect to how it reaches decisions in the cases before it and how it justifies those decisions. Therefore, on this point too, the court finds no procedural defect that gives rise to any legal consequence.

Limitations of the investigation and systematic opposition to requests by the defence

Citing “limitations of investigation at the scene and counter-investigations” and “systematic resistance to requests made by the defence”, counsel for defendant Pulatov has asserted that there was a failure to investigate many matters that should have been investigated, due to the passage of time and the situation at the scene, or due to deliberate choices made by the prosecution, or as a result of court decisions following a negative reaction from the prosecution on the matters in question.

With respect to those matters that could not be investigated due to,
inter alia , the circumstances on the ground or the passage of time, the court maintains that this can hardly be regarded as a procedural defect. One, in this case, the JIT and the prosecution, cannot do the impossible and cannot be blamed for not doing it either, particularly since a procedural defect presupposes an active and deliberate act or omission. Moreover, matters which have not been investigated cannot yield evidence that the accused perpetrated the charged offences. For that reason, therefore, this does not constitute a procedural defect, let alone grounds for barring the prosecution.

If matters that could have been investigated were not investigated, the court is of the opinion that this is only of importance if those are matters that have a bearing on the questions that must be answered by the court. In those cases where requests for investigation of the matters have been submitted to the court, the court has already made a reasoned decision on them. In making its reasoned decision and assessing the requests for relevance, the court considered the accused’s interest in due process. Given that the court has made its decision, at this point in the proceedings it is not relevant what the prosecution’s position was on those requests for investigation. Indeed, where necessary, the court gave equal consideration to the position of the prosecution and of the defence in arriving at its reasoned decision. The prosecution’s position on matters submitted to the court for consideration can, therefore, hardly be regarded as a procedural defect. For the same reason, the same is true of the court’s decision not to honour requests for investigation. That being said, the requests for investigation that were denied may leave room for the conclusion that there is insufficient or insufficiently compelling evidence in support of the charges, or parts thereof. However, this cannot be construed as a procedural defect either, rather it will be reflected in the assessment of evidence.

Composition of the prosecution file

With regard to the composition of the prosecution file, counsel for defendant Pulatov continues to doubt whether the file is complete; in other words, whether all relevant documents have been included in the prosecution file. This matter was raised on several occasions during the court proceedings, and consequently the court addressed it several times. This means that, strictly speaking, this is not a matter pertaining to the investigation that precedes the trial. However, because failure to include relevant documents in the prosecution file - the contents of which
are known to the prosecution - may constitute an infringement of the principle of
equality of arms , it is possible that this amounts to a procedural defect that has, or had, a decisive influence on the fair course of the subsequent prosecution of the accused for the offence in question. Therefore, in the opinion of the court, the alleged failure to include all relevant documents in the prosecution file falls within the scope of Section 359a DCCP.

Regarding the composition of the prosecution file, the court stated in court that the prosecution file should include all documents that could reasonably be of importance to any decision to be made by the court.

Once it had become apparent to the court that the prosecution had interpreted the applicable criterion too narrowly, for which there is no basis in the law, it brought this to the attention of the prosecution and requested a reassessment. ^[22] This resulted in further documents being designated by the prosecution as “potentially relevant”, and these were therefore provided - subject to restrictions - to the court and added (or not added, as appropriate) to the prosecution file by the court. In that reassessment, however, the prosecution also identified a number of documents that it did not itself consider relevant, but, by briefly describing the content thereof, allowed the court to decide whether it considered them relevant to any decision to be made by the court so that they could then be added to the case file. A week later, the prosecution again provided several documents to the court with the comment that, in light of a new and broad reassessment by the prosecution, the court might find them “potentially relevant” to any decision to be made. From the course of events described above, the court concludes that, even after it had been explicitly asked to do so by the court, the prosecution failed to conclude itself that certain documents were relevant and therefore needed to be added to the prosecution file, as it should have, but rather disputed the relevance of the documents, or, at most, deemed them to be “potentially relevant” and then left the decision to the court. This does not really attest to the application of the correct criterion for determining the relevance of documents for inclusion in the prosecution file. The court therefore understands the suspicions still harboured by defence counsel on this point.

At the same time, the court also considers that the question of what is relevant requires more by way of answer than merely stating that the investigation file may contain exculpatory information, and that the assessment of relevance depends partly on the position taken by the defendant on aspects of the charges against him. Where no such position has been taken or has not been adequately elaborated, and no further questions can be put, the relevance of a particular document is more difficult to assess. Indeed, relevance may depend in part by, for example, on a possible line of defence that may be presented or a request for investigation to be submitted. For the most part, no such clear positions were advanced by the defence before that point in the proceedings when it presented its case. Therefore, they could not be taken into account when determining whether specific documents were relevant or not. In addition, it is a fact that counsel for defendant Pulatov inspected, or received copies of, numerous documents from the investigation file, at its request. Counsel for defendant Pulatov only cited a small number of those documents when presenting its case and requested inclusion of still fewer in the prosecution file. The court infers from this that, of the very many documents considered potentially relevant by the defence, hardly any were relevant enough to result in (a request for) their inclusion in the prosecution file. Evidently, the relevance of most of these many documents was, therefore, not apparent to the defence either. With regard to the documents provided for inclusion by the prosecution earlier, the court rules that any procedural defect that had occurred due to their not being added at the prosecution’s own initiative earlier, was remedied during the trial. In light of this and in view of the considerable size of the prosecution file, the court is confident that the prosecution file now contains the documents that it should contain in order for the court to be able to answer the questions set out in Sections 348 and 350 DCCP properly. This leads the court to find that no procedural defect such as that argued by the defence exists, or exists any longer having been remedied, and that therefore no legal consequence need be attached to it.

With regard to the refusal to permit inspection of the investigation file, the court merely observes that the repeated deployment of this argument, which the court has previously rejected, with reasons, is based on a continued failure to recognise that the law provides for no right on the part of the accused to inspect the prosecution’s investigation file. The mere assertion by counsel for defendant Pulatov that no statutory basis is necessary does not persuade the court to alter its thinking on this point. As described above, it is the responsibility of the prosecutor to include all relevant documents from the (preliminary) investigation in the prosecution file, and thus provide these to the accused, but not to allow the defence to inspect all the results of that investigation as well. Nor is this in keeping with the different nature of the tasks undertaken by the defence and the prosecution. It is the broader investigation that has given rise to the prosecution file, based on which specific suspicions against these accused emerged, leading to the framing of charges against them. These charges are the focus of the trial conducted by the court; the trial is limited to these charges and the rights to defence relate to them. This is also consistent with the principle already formulated by the court in previous decisions, that an accused does not have an unconditional right to repeat the investigation conducted under the direction of the prosecution. Given the situation described above, the court finds that there are no procedural defects in this regard.

All of the aforementioned, taken together, leads the court to the conclusion that, with regard to the investigation and the prosecution file, there is no, or is no longer, any procedural defect; therefore, there is no reason to bar the prosecution.

4.4.4.4 Witnesses and the right to examine

Counsel for defendant Pulatov asserts that, compared with the very large number of witnesses and expert witnesses that contributed to this complex and lengthy investigation, the very limited number of defence requests for investigation granted by the court restricted the defendant’s ability to exercise his right of defend himself so severely that it violated the principle of a fair trial enshrined in Article 6 ECHR. The defence also argues that limitations placed by the investigating judge on its right to examine the witnesses and expert witnesses who it was authorised to question and the way in which those interviews were organised can be characterised as procedural errors. Errors which make it impossible to speak of a fair trial and which should therefore lead to a bar on the prosecution.

With respect to the argument regarding the number of requests for investigation granted by the court, the court merely notes that that argument can be better characterised as an appeal against the court’s decisions on those requests for investigation. Such an argument therefore does not lend itself to assessment of its merits by this court.

With regard to the restrictions applied to the interviews approved and conducted, the court sees no basis for the conclusion that more restrictions were applied by the investigating judge than necessary to protect the statutory interests that were served. In this respect, the court refers to the reasons given by the investigating judge for imposing those restrictions in each case.

For the sake of completeness, the court considers that with respect to the rejected requests for investigation, it is premature to conclude that the legal proceedings were not fair. More important is the question of whether the court will use specific statements as evidence, and, if so, how those statements relate to the other material used as evidence. Where the court wishes to use witness and expert witness interviews in explaining the reasons for its assessment of the evidence, it will apply the criterion prescribed by the ECtHR and refer to this when giving its reasoning. For that reason alone, no procedural defect can be found here.

4.4.4.5 Accumulation of defects identified and the
fair trial criterion with respect to preliminary matters

Finally, as indicated in the preamble to this part of the preliminary matters, the court will consider whether an accumulation of the procedural defects identified above, which do not individually meet the threshold for a bar in themselves, could collectively lead to the conclusion that the trial has not been fair. The reason for this is the assertion by counsel for defendant Pulatov that, for the reasons outlined, it has found itself side-lined and excluded, in an exceptional manner, from the proceedings as a whole, i.e. the investigation and trial. According to the defence, this is a flagrant violation of the right to a fair trial.

The court's response to that argument is that it follows from the foregoing that, in the court's opinion, most of the points identified by the defence as procedural defects are not, or are no longer, procedural defects. The matters that can be regarded as procedural defects and have not been remedied are the fact that the prosecution and the JIT, at a press conference that was screened worldwide, described quite categorically what they alleged had happened to flight MH17 and made allegations about the close involvement of the then suspects in that, then subsequently named the suspects explicitly and showed their photographs; and launching an application that includes documents from the file and explains (according to the prosecution) “what happened to flight MH17, and who was responsible for it”. Not only that, but did so while the case was still ongoing and the file could only be inspected by a limited group of people and even then solely for purposes relevant to the criminal proceedings.

On the question of whether the accumulation of these defects found by the court should lead to the conclusion that the trial is no longer fair, the court answers in the negative. Prosecution of the case is thus plainly not unreasonable. The fact of the matter is that the court was not swayed by these defects and neither was the defence’s ability to present its case curtailed as a consequence of them. The interests of the accused that were at stake are privacy interests, as protected by Article 8 ECHR. With regard to those interests, the court considers that, given the terrible events that gave rise to the charges against the accused and the exceptionally large number of direct victims - which resulted in an even larger number of victims’ relatives - a case like this would inevitably attract widespread media attention. All the suspects would therefore probably have been the subject of intense media attention sooner or later in any case. All things considered, the severity of the defects found, considered together and in light of the massive scale of the investigation and the importance of the case, is not such as to justify barring the prosecutor from prosecuting.

Thus, even considering the accumulation of the defects found, the court finds no reason to bar the prosecution.

4.4.5

Conclusion regarding the right of the prosecutor to prosecute

An exhaustive consideration of the questions raised regarding jurisdiction, the limitations of jurisdiction under international law and whether the right to prosecute has been forfeited leads the court to the conclusion that there are no impediments to the prosecutor proceeding with criminal proceedings.

The prosecutor, therefore, has the right to prosecute.

Any additional or other arguments put forward by the defence do not change this conclusion.

4.5

Grounds for suspension of the prosecution

There are no grounds to suspend the prosecution.

5. GENERAL PRELIMINARY CONSIDERATIONS

5.1

Introduction

The crash of flight MH17 in eastern Ukraine prompted investigations by several agencies into its cause. These investigations took place under difficult circumstances; an armed conflict was ongoing in the area where the aeroplane had crashed. As the 298 victims were from different countries, these countries combined their efforts to conduct a joint investigation. That led to the establishment of a Joint Investigation Team (JIT): an international investigation team comprising members from the Netherlands, Ukraine, Australia, Belgium, and Malaysia.

In addition, the Dutch Safety Board (DSB) independently investigated the cause of the disaster. A final report was presented by the DSB in October 2015, setting out its conclusions on the cause of the crash of flight MH17 and making recommendations to prevent a similar incident in the future. Those recommendations concern overflight of conflict zones. Similarly, the purpose of the DSB's investigations is to investigate the cause of a disaster, without considering guilt or innocence, in order to prevent future recurrences.

Criminal cases are different: the court must assess the charges against the accused based on the relevant contents of the case file and with due regard for Dutch criminal law and procedure, and must do so independently and separately from the DSB conclusions regarding what caused flight MH17 to crash.

The basis for that assessment is the prosecution file as submitted to the court by the prosecution. The prosecution file contains the results of the criminal investigation as conducted by the JIT, under the responsibility of the Public Prosecution Service. When the prosecution file was discussed during the trial, the court underlined repeatedly that it had discussed the results and findings of the JIT investigation, without expressing an opinion on them. This is not the case in this judgment: herein, the court gives an assessment of those results and findings. In that assessment, a distinction can be made between, on the one hand, the question to be answered by the court as to the events leading up to the crash of flight MH17, and, on the other, the question of who was responsible for it - specifically whether one or more of the accused may be culpable under the law.

In the introduction to its oral arguments, counsel for defendant Pulatov spoke about uncovering the truth, and, by asking rhetorical questions, at least suggested that there had been no scope for determining the true facts in this criminal case. In this regard, counsel for defendant Pulatov has,
inter alia , argued that establishing the truth by means of a criminal investigation necessarily "implies a reduction of reality" and that these criminal proceedings are being conducted in a blinkered fashion. It was argued that little or no investigation - by the defence - was permitted into scenarios other than the main scenario that flight MH17 was downed by a Buk missile. It has also been argued that the composition of the prosecution file is the preserve of the prosecution, that the ‘investigation file’ contains additional information relevant to establishing the truth, but that that information now remains outside the criminal proceedings. It was also indicated that issues regarding the prosecution's main scenario remained unresolved.

Firstly, the court notes that one of the fundamental purposes of criminal proceedings is to establish the material facts of the case - to uncover the truth of the alleged matter. Another is to assess the extent to which the facts established constitute conduct deserving of punishment. Therefore, establishing the material truth logically precedes assessing whether any conduct of the accused warrants punishment. The fact that the court is bound by the rules of criminal law and procedure, such as the aforementioned constraints of the indictment, in determining the material truth of the matter, i.e. establishing the facts, does not mean that a trial does not involve fact finding, or that the truth as established at trial is different from the factual truth. On the contrary, criminal proceedings are structured in such a way that fact finding, in fact takes place with the help of scientific rules and other such mechanisms. In other words, the process of establishing the material truth in criminal proceedings is not substantially different from material fact finding elsewhere.

However, the following caveat applies. If the evidence does not convincingly prove that the allegations against the accused in the indictment actually hold true, the subsisting uncertainty about what happened will always be interpreted in the accused's favour and may lead to acquittal. In such an instance, the court need not determine what did happen. Conversely, for the court to find that the charge can be proven, there is no requirement for the role and identity of everyone involved to be established; it suffices that it is established that the role of the accused corresponds to that charged.

5.2

The criminal investigation conducted by the JIT

The investigation that forms the basis for this criminal case was conducted by the JIT. Counsel for defendant Pulatov has argued that this, combined with the fact that it was not possible to work safely in the crash area because of the armed conflict, affected the gathering of evidence: the Dutch Public Prosecution Service did not have the requisite ’freedom’ to conduct a reliable and conclusive investigation.

While the criminal investigation into the crash of flight MH17 has been repeatedly described as unique given the nature, scope, and duration of the investigation, establishing a JIT in cooperation with foreign judicial authorities to investigate allegations with an international component is not. A JIT enables countries to coordinate and cooperate on their investigations and exchange information and evidence. The arrangements for establishing a JIT, for cooperation, and for the exercise of powers are laid down in a JIT agreement. ^[23] With regard to investigative powers specifically, the JIT agreement governing the MH17 investigation states that, while acknowledging the sovereignty of the parties, JIT members have the right to take part in each other's investigations within the limits of applicable domestic law. ^[24] That, as counsel for the defendant Pulatov stated with regard to the JIT that “
no arrangements have therefore been made to allow Dutch investigating officers to carry out investigative activities on Ukrainian territory entirely independently and autonomously from, for example, the SBU ”. However, this fact is not surprising, given that, pursuant to Section 5.2.2 DCCP ^[25] , which concerns the exercise of investigative powers in the Netherlands in respect of a JIT, foreign officials are not authorised to conduct investigations in the Netherlands either, unless provided for by or pursuant to law. Foreign investigators have no independent investigative powers in the Netherlands and may not conduct official acts in their own capacity. There is no reason why this should be any different for Dutch investigators in the context of this investigation in Ukraine.

The structure and
modus operandi of the JIT have not restricted, but rather facilitated and thus actually expanded investigative opportunities. The fact that there was an armed conflict in the crash area did restrict the investigation, as the prosecution has repeatedly stated. As a result, a number of matters could not be investigated, or could not be investigated at the desired time. However, the consequence of this is that evidence that could have been collected might not have been collected, or not fully collected. Regarding the argument put forward by counsel for defendant Pulatov that this has adversely affected its client’s defence because potentially exculpatory evidence could not be collected due to these impediments, the court considers that it is impossible to pass judgement on the incriminating or exculpatory nature of evidence that has not been collected. The court's task is to assess whether or not the evidence that has been collected proves the scenario in the indictment legally and beyond doubt. The court can rule to that effect only if the evidence gathered is so conclusive that other scenarios - and thus the existence of exculpatory evidence - can be reasonably ruled out. The court will assess whether that is the case in this judgment.

5.3

Evidence obtained from or via the SBU

Since a substantial part of the criminal investigation took place on Ukrainian territory, it is only logical that the SBU, the Ukrainian investigative authority, was involved. In this connection, counsel for defendant Pulatov argued that, in conducting that investigation, the Public Prosecution Service was largely dependent on the SBU for the collection of evidence, despite the fact that that body serves Ukraine's national interest and has a questionable reputation. The SBU's conduct shortly after the disaster - when, on three occasions, it presented conflicting launch sites from which a Buk missile had allegedly been launched, and, after two days, made intercepted conversations publicly available online and on its own website - also gives counsel for defendant Pulatov pause for thought. In short, counsel for defendant Pulatov argues that cooperation with and dependence on the SBU compromised the quality and reliability of the investigation and that this should not be overlooked when assessing the evidence. According to the defence, one cannot unreservedly trust that the sources of evidence obtained from or via the SBU are true or complete.

The prosecution asserts that the limitations outlined by counsel for defendant Pulatov regarding the investigation and the SBU's involvement in it have been recognised and stated by the prosecution. The prosecution has argued that the evidence in this case was scrutinised even more ‘rigorously’ than in other criminal investigations because the various parties to the conflict have, or may have, interests in the outcome of the investigation. According to the prosecution, in this investigation more caution was exercised in respect of evidence from Ukraine than would be customary in international cooperation on criminal matters, in that the evidence was always validated.

With regard to material obtained from abroad that could serve as evidence, including material obtained from or via the SBU, the court considers that the principle of legitimate expectations applies. ^[26] This means that the manner in which that material was collected and came about is deemed to be in accordance with the applicable rules and regulations in the country in question, and, therefore, barring serious indications to the contrary, can be considered reliable. The court must ensure that the manner in which evidence obtained from abroad is used does not prejudice the right to a fair trial under Article 6(1) ECHR. Following these principles, the court sees no reason to exclude out of hand material obtained from or via the SBU from evidence solely for this reason. That being said, if necessary, it will explain, per type of evidence, any possible contraindications that have caused it to consider more closely the degree to which the material in question may serve as evidence.

The evidence in the case file consists of official investigation reports, results of forensic analysis, visual material such as photographs and videos, radar data and satellite images, recorded intercepted conversations and the associated metadata, data on the locations of pinged transmission masts, witness statements, and reports and statements by expert witnesses. A significant part of this evidence was (initially) obtained from the SBU or handed over to/reached the JIT via the SBU. The court will have to establish the reliability, authenticity, completeness, and veracity of such evidence when using it in evidence. The court will do so by first considering various types of evidence in general terms. Only in a few instances does the court find it necessary to go beyond its general assessment of the evidence to discuss specific considerations regarding particular evidence.

5.4

Use of witness statements

Statements by witnesses ^[27] that are in writing and made during the preliminary investigation – i.e. not when the trial is taking place in the presence of the defence – may be used in evidence, provided that the rights of the defence have been respected. These defence rights are enshrined in the Dutch Code of Criminal Procedure and derive
inter alia from Article 6 ECHR. ^[28]

The accused is entitled to a fair and public hearing of his criminal case. The right to examine incriminating and exculpatory witnesses is a significant part of this. However, most importantly, the defence must make a timely and sufficiently substantiated request for a witness to be called. If the defence fails to do so and the earlier statement(s) (given in the absence of the defence) are used as evidence, in principle, there is no violation of Article 6 ECHR. ^[29]

In line with case law of the ECtHR, the Netherlands Supreme Court ^[30] has, since the Keskin judgment, ^[31] taken as its starting point that it must be assumed that the defence has an interest in a prosecution witness (incriminating witness) being called, and that therefore the court should not require the defence to justify its interest further. However, the defence must make the request in order for a witness to be examined. In those cases, greater scrutiny is given to whether a right to examine a witness can and should be realised. In addition, the ECtHR’s judgment in the Keskin case underscores the importance of the judge first verifying whether the proceedings as a whole fulfil the right to a fair trial guaranteed by Article 6 ECHR, before finding a charge proven based in part on the statement of a witness who was not examined. However, it does not follow from the ECtHR's judgment that the right to examine a witness implies that a defence request to examine a witness who has made an incriminating statement is always allowable. Account may need to be taken of whether a witness will appear in court within a foreseeable period of time, or whether there are well-founded reasons to believe that the health or welfare of the witness will be jeopardised by giving evidence in court and that the prevention of this danger outweighs the interest of examining the witness in court. Furthermore, Article 6 ECHR does not prevent the court from rejecting the request if calling a witness is “manifestly irrelevant or redundant”, because questioning the witness (anew) is of no importance for or adds no value to the case being made. This is the case, for example, in instances when the facts and circumstances to be explored further by questioning a witness have already been established beyond reasonable doubt by other findings of the criminal investigation. ^[32]

The Netherlands Supreme Court sets stricter requirements when it comes to experts and investigators who conducted technical investigations. As their role is distinct from that of a witness or eyewitness, a request by the defence to question them on a statement or report they have made which is incriminating for the accused needs to be substantiated, in particular as regards the parts disputed by the defence, and as regards why questioning, and not another method of review, is necessary. ^[33]

The following applies with regard to the use of witness statements in particular. If the accused does not contest a statement made during the preliminary investigation and has waived his right to question the witness, that statement may be used as evidence. Furthermore, use of that statement does not violate the rights of the defence provided the defence has had the opportunity, at some time, to question the witness, for instance by means of the investigating judge interviewing the witness in the presence of the defence, or by the witness being examined in court.

It can happen – and this situation also applies in this criminal case – that there has been no opportunity, or no real opportunity, for examination, and that this is not due to a failure of the judicial authorities. This includes the case where a witness died before they could be questioned. Or if the witness invokes the right of non-disclosure during questioning and refuses to give answers. However, this does not automatically mean that such witness statements are not or no longer useful as evidence. Despite this handicap for the defence, the trial as a whole can still be fair if the witness statements in question are used in evidence. The ECtHR has devised a roadmap to indicate the circumstances under which this may be the case. Foremost here is whether there was a good reason for not being able to question the witness. ^[34]

If there was a good reason, then consideration should be given to whether the conviction rested solely or to a decisive extent on the statement(s) of the witness in question. The issue here is whether the witness’s statement(s) are so important that they are likely to have been decisive for the outcome of the case. Whether that is the case depends largely on the strength of the corroborating or other evidence. The main question here is whether, on the matter disputed by the accused, that evidence supports the statement(s) of the witness who was not examined. ^[35]

If the statement(s) of the witness who was not examined prove decisive for the conviction (in the aforementioned sense of “solely or to a decisive extent”), it is important whether the defence was offered adequate compensation for the lack of a proper and effective opportunity for questioning. The form of the compensation depends on the circumstances of the case.

This roadmap is also relevant in the case of an anonymous witness who was not examined ^[36] . According to the ECtHR, from the perspective of the defence, such a witness may be equated to an anonymous witness who has been threatened or protected. ^[37] In that case, the roadmap is preceded by the question of whether there was good reason to conceal the identity of the witness.

If a witness statement is ultimately used in evidence subject to the stipulations mentioned above, then the general requirement is that the statement must also be reliable. In addition to that general requirement, if the court wishes to use as evidence a statement made to the investigating judge by a protected or threatened witness, ^[38] pursuant to the Code of Criminal Procedure, the court must provide additional substantiation in the judgment of why such a statement was considered reliable. ^[39] Furthermore, a statement made by a protected or threatened witness may only be used in evidence if that person was questioned by the investigating judge as a protected or threatened witness and if the charge ultimately proven, for which the statement was used as evidence, concerns a crime eligible for pre-trial detention and which constitutes a serious breach of the rule of law. ^[40] Regarding these additional requirements, the court notes that, in the case in hand, the court only used as evidence statements of witnesses who were questioned by the investigating judge as protected or threatened witnesses. Furthermore, the court notes that the offences alleged against each of the accused and ruled upon in this judgment (i.e. intentionally causing an aircraft to crash and murder or manslaughter) are serious crimes, for which, in light of the alleged circumstances, long prison sentences or life imprisonment may be imposed. In the court’s view, the required serious breach of the rule of law is evident from their very nature and the magnitude of their impact on society as a whole.

Where the judgment cites the statement(s) of a protected or threatened witness as evidence, the court will specifically address the reliability of that testimony. The court finds that the judgment in this case meets the third requirement set by law and by the ECtHR, that a judicial finding of fact may not be based exclusively or to a decisive extent on evidence that is anonymous or considered as anonymous. It does so because, on the one hand, the witness statements used as evidence in this judgment come from witnesses, including protected and threatened witnesses, who are sufficiently identifiable as individuals and who could be and were questioned by defendant Pulatov and his counsel, and, on the other hand, because the court does not rely on just one piece of evidence in any of its considerations, and so it does not use the witness statement of just one witness, anonymised or otherwise.

In the end, in assessing the charges in this criminal case, the court used only a small number of witness statements as evidence. This is because the case file contains sufficient other evidence which at its core and by its nature is more objective, such as technical and forensic documents whose reliability has been verified. A number of witness statements were used as supplements. When it comes to witness evidence, especially in a case such as this where the crime investigated occurred not only during, but also in the context of, an armed conflict, cautious handling of witness statements is required. The events often concern incidents that took place quite some time in the past and in circumstances that were sometimes traumatic for the witness. It is also possible that witnesses have become aware of reports in the conventional and social media regarding the cause of the event and/or have spoken with others about what happened, both of which may influence their memory. Furthermore, it cannot be ruled out that the sympathy a witness may have for one of the parties to the conflict may also have coloured his perceptions or statements. It is not uncommon in such cases for there to be a multitude of witness statements that are inconsistent with one another, as is the case in this instance. So too in this case. Therefore, in principle, the court attaches greater weight to a witness with respect to whom it can be said that there are circumstances that make that witness carry special weight, for example, because he/she claims to have been in the vicinity of the alleged launch site on 17 July 2014, or who appears to be making incriminating statements about himself/herself, or who appears to be making statements in rebuttal to supposed/alleged political or military sympathies. The question of whether the witness’s testimony can be corroborated using other types of evidence is also a consideration.

5.5

Expert witnesses and scenarios

The court first and foremost states that in this judgment, the terms ‘expert’ and ‘expert witness’ do not refer to persons who are knowledgeable about certain matters, but rather to persons who were questioned by the investigating judge to determine not only whether they have sufficient subject matter expertise, but also whether they are committed to integrity, independence and impartiality, after which they were officially appointed as experts by the investigating judge. These persons are therefore expert witnesses within the meaning of Section 227
et seq. DCCP.

With regard to the Almaz-Antey representative, who was questioned by the investigating judge, the investigating judge determined that he had sufficient subject matter expertise to be able to testify on the subjects on which he and others were questioned. The investigating judge questioned him as an expert witness. However, he was not appointed as an expert witness by the investigating judge. During the interviews – following extensive discussion on the subject between the prosecution and counsel for defendant Pulatov – the investigating judge explicitly left it to the court to determine the independence and impartiality of this Almaz-Antey representative and the probative value that can be attributed to his statement. The court will return to this later, but notes at this point that the following considerations regarding experts relate only to experts
appointed by the investigating judge.

Expert witnesses in this sense are also distinct from the investigating officers, who conduct ‘technical’ investigation during the preliminary investigation. The following fall under technical investigation: enquiries in the pre-trial phase (such as the preliminary investigation), analysis and interpretation based on standard and reproducible research, investigations carried out by an investigatory body and analysis on the subjects/objects listed exhaustively in Appendix 3 of the Designation of Technical Investigation. These investigating officers need not be appointed by the investigating judge. Employees of the Australian Federal Police (AFP), an investigatory body, fall into this category. Their findings may be used in evidence as other written documents, as mentioned above. Dutch investigating officers record their findings in official reports which may be used in evidence.

Reports drafted by expert witnesses are entered in the case file in the name of the expert witness or expert witnesses involved. The identity of the expert witnesses is therefore known. Some expert witnesses were also questioned by the investigating judge during the criminal investigation, with some of them being referred to by a number instead of their name in the relevant official report. Their names are known to the investigating judge, the prosecution and counsel for defendant Pulatov, but these numbers were assigned to them after they were interviewed as expert witnesses at the request of parties to the proceedings. Therefore, the provisions of Sections 344a and 360 DCCP, the rules regarding the use of anonymous and threatened witnesses, do not apply to them.

Counsel for defendant Pulatov has argued with respect to many persons designated as expert witnesses in this case that they cannot necessarily be considered experts on the subject on which they have reported, or that in any event they do not have knowledge of and experience with the specific subject matter at issue in this investigation: the crash of a Boeing-aeroplane from, and under conditions prevailing at, an altitude of ten kilometres, by detonation of a Buk-type surface-to-air missile, in which one of several warhead types, each with its own specific features, may have been mounted. According to counsel for defendant Pulatov, this either detracts from the value of their findings or renders those findings entirely unsuitable for use as evidence.

At this point in the judgment, the court first notes in general terms that expert opinions contained in this case file, as mentioned above, were prepared by persons appointed as experts by the investigating judge. This persons are either listed in the Netherlands Register of Judicial Experts (NRGD), which includes only persons whose expertise in a field has previously been determined according to specific standards, or, prior to their appointment, their expertise in the field in which a report from them was requested has been determined by the investigating judge further to enquiries. This system and method of appointment are in themselves a guarantee that the reporting person has the requisite expertise. After all, for inclusion in the NRGD, quality requirements for each area of expertise must be met, and bounds and circumscriptions have been set for each area of expertise within which the person in question is considered an expert. When a person who is not listed in the NRGD as an expert in a particular field of expertise is appointed by the investigating judge, the reasons for this are provided and substantiated in the appointment of that expert witness. Moreover, all expert witnesses so appointed produced their reports according to the standards set out in the NRGD Code of Conduct, by which not only NRGD-registered experts, but all experts appointed in a criminal case, are bound. ^[41] Those standards cover integrity, independence and impartiality, but also require the expert witness to remain within the limits of the remit given to him and within his area of expertise. For that reason alone, the mere fact that an expert witness has no experience with a specific case is no reason to doubt his expertise in that particular instance. After all, an expert witness examines and reports based on his knowledge and expertise in a specific field and what the latest science in that field tells him, which are considerably broader than a specific case. Moreover, no single person (whether appointed as an expert in this criminal case or not) has or even can have any experience at all with shooting down a civil aircraft at an altitude of ten kilometres with a Buk-type surface-to-air missile, simply because this specific situation has never occurred before and somewhat similar incidents have not given rise to an extensive criminal investigation, or because the results of investigations that did take place are not or not widely available. Therefore, this in no way affects the expertise of the expert witnesses reporting in this case. The court further finds that there is no evidence that the expert opinions contained in the case file were not created or prepared according to the standards in the NRGD Code of Conduct. On the contrary, in the reports, the expert witnesses concerned indicate the limits of their expertise and of the research they conducted, and they report within the parameters of the remit entrusted to them. Moreover, counsel for defendant Pulatov had the opportunity to question at length the expert witnesses interviewed by the investigating judge at its request, including about their expertise and the foundation of that expertise. Thus, in the court’s opinion, there is no reason to doubt either the expertise of the persons thus appointed by the investigating judge or the value of the reports prepared by them in general.

Nor can such doubt arise purely from the fact that many of the expert witnesses producing reports in this case work for the Netherlands Forensic Institute (NFI), somewhat disparagingly referred to by counsel for defendant Pulatov as “the prosecution’s official supplier”. Although the NFI receives its assignments from various government agencies – and thus not just the Public Prosecution Service – this does not make the institute an organisation that performs and reports what its commissioning bodies command it to do. In any case, the organisational and financial embedding of the institute under the Ministry of Justice and Security is not indicative of this. The NFI is an institute that is organisationally and financially independent of its commissioning bodies. Moreover, the NFI’s duties and methods of operation are subject to safeguards. Indeed, the NFI’s core task as formulated in the NFI Regulation on Remits ^[42] is “to conduct independent forensic case investigation... and to report on it... with a view to establishing the truth”. That document also covers the method of funding, which extends beyond a single (governmental) organisation. All expert witnesses working at the NFI also work according to the NRGD Code of Conduct described above. In addition, the NFI is an internationally-renowned institute, and the ultimate assessment of the reliability of its reports in criminal cases falls to independent courts. The court is of the opinion that there are no indications, either in the case file or that have emerged at trial, that give rise to the slightest suspicion that the investigation work performed by expert witnesses from the NFI does not meet the requirements imposed with respect to expertise, independence, objectivity, reliability and meticulousness.

Even more important than the independence of the NFI mentioned above, is that there has been nothing to indicate that the prosecution has an interest in any particular outcome of the analysis conducted by the NFI. In no way has it been demonstrated that the Public Prosecution Service or any other Dutch authority has any interest in any particular outcome to the investigations other than the truth. While much has been suggested on this point, both within and outside the confines of this criminal case, what interest that would be and what evidence there is for it has not been specified. In these circumstances, therefore, the court does not see how or why the NFI might have been directed by the Public Prosecution Service.

However, as is the case in any criminal case, it can nonetheless happen that something specific may emerge that could detract from the reliability of a prepared report, for example, caused by confirmation bias as a result of the expert witness being provided with leading information at the outset, or multiple consecutive reports being prepared by the same expert witness in the same case. The court does not consider the sentence
“According to Ukrainian government sources, the aircraft was hit by a Buk missile system,” that appeared in each investigation enquiry form as background information, to amount to providing a leading starting point. First, this is because the content of this sentence is simply correct; after all, that was exactly what the Ukrainian authorities were claiming shortly after the crash of MH17 and what had already been widely proclaimed in the media, and thus it will not have been unknown to the expert witnesses in any case. An even more compelling reason is that there is nothing that indicates
a priori that the expert witnesses aligned the conclusions of their reports on that information. The inclusion of this sentence in the reports as background information can equally be regarded as an indication of the openness with which the reports in question were prepared according to standards set forth in the NRGD Code of Conduct.

Confirmation bias, which is a possibility when the same expert witness preparing several successive reports in the same case, which has happened in this case, cannot of course simply be ruled out, but rather needs to be appraised in the light of the report itself, and in conjunction with the other evidence. Conclusions in reports may indeed be prompted by such a process, but may just as easily be the logical consequence of simply being correct. As this can be determined in part using the other information contained in the case file, the court will weigh the reports in relation to that other information.

Based on those considerations, the court finds no grounds for the pre-emptive collective disregarding of all expert opinions prepared by expert witnesses from the NFI which have been entered in the case file. This is equally true of the IDFO report dated 6 September 2017. According to counsel for defendant Pulatov, this report was not prepared in accordance with the instructions in the NFI’s specialist supplement Interdisciplinary Forensic Investigation. The court notes, however, that in a written response to questions from counsel for defendant Pulatov, the author of this report stated that it was a summary report and that an interdisciplinary forensic report – to which the above specialist supplement refers – was not requested.

Moreover, it is true to say that no criminal investigation takes place in a vacuum.

The prosecution has stated several times that there were concrete indications early in the investigation that flight MH17 might have been shot down using a Buk missile. This included information shared on the internet and social media immediately after the crash of flight MH17, as well as information shared and/or made available by relevant authorities. According to the prosecution, those indications were gradually confirmed by further investigation and those findings led to certain choices being made in the investigation. The JIT then arrived at a ‘main scenario’, namely that flight MH17 was brought down by the launching of a Buk missile from a farm field near Pervomaiskyi. In its further investigation, the investigation team focused on this scenario. However, other possible facts and circumstances that could have led to the crash of flight MH17 were also investigated (the ‘alternative scenarios’).

It was argued by the defence that the focus on the main scenario meant that no equivalent investigation was done into alternative scenarios.

First, the court considers that ‘continuing to investigate’ based on indications that exist after an event has occurred is not the same as focusing unilaterally on a ‘main scenario’. In a criminal case, however, the use of the term ‘main scenario’ in relation to the term ‘alternative scenarios’ causes confusion: an alternative scenario in a criminal case is “a statement by the accused, in which he outlines a different ‘scenario’ that fits the evidence”. In this case, however, the ‘alternative scenarios’ are not concerned with a scenario or explanation provided by an accused, but with investigating and excluding possible other causes for the crash of flight MH17. Those possibilities were investigated.

Based on that investigation, the prosecution has ruled out the possibility that there was an accident (such as mechanical failure of the aeroplane or human error), that there was an explosive on board, that there was an air-to-air attack or that there was an attack from the ground with a weapon other than a Buk missile. In this criminal case, the court must assess whether the main scenario identified by the prosecution is proven, in the sense that the court must determine whether there is sufficient, legal and conclusive evidence of the body of facts charged. If this is not the case, and other scenarios are still sufficiently plausible, the court must acquit. However, if the main scenario is proven legally and beyond doubt, other scenarios are thereby necessarily ruled out.

5.6

Intercepted conversations and transmission mast data

Intercepted conversations

The JIT obtained from and through the Ukrainian Security Service a large amount of intercepted telephone calls and associated telecom traffic and transmission mast data. The majority of this telecom information was collected by the Ukrainian Security Service in and around 2014 as part of the aforementioned ATO, which involved recording telephone communications of a large number of individuals. As the purpose of the ATO was to investigate and identify potential terrorist actions committed by, among others, separatists against the Ukrainian state in the context of the above-mentioned armed conflict, this logically involved the recording and logging of telecom information of individuals who could be considered enemies, or potential enemies, of the state. Counsel for defendant Pulatov has repeatedly expressed surprise and doubt about the fact that the case file does not contain telecom information from the Ukrainian military. However, that is entirely logical, considering the purpose for which that data was recorded and logged. After all, it seems unlikely that Ukraine would intercept and record telecom information from its own military.

In order to scrutinise the quality and integrity of the telecom material received from Ukraine, Dutch members of the investigation team primarily compared the intercepted conversations contained in the case file with each other and cross-referenced them with respect to contact details in the historical telecom traffic data (telephone numbers, IMEI numbers, transmission mast locations and metadata). This process did not uncover any unexplained discrepancies, leading to the conclusion that the quality and integrity of the intercepted material is comparable to that of similar material in criminal investigations in the Netherlands. ^[43] The court therefore does not see any reason to consider the telecommunications material received from Ukraine as unreliable.

In addition, the authenticity of the material obtained was verified; in other words, a check was performed to verify that the material had not been manipulated in any way. To that end, the data of the intercepted conversations received from the SBU was examined to see if it deviated from the data obtained from Ukrainian telecom providers through the SBU. This was not found to be the case. ^[44] In addition, the content of many intercepted conversations contained in the case file was compared with open source information, such as media publications and video footage on social media and news reports, and with information from various individuals, including suspects. In the case of several conversations, it was determined that the content of those conversations corresponded with information found in open sources, or with what the persons (participating in those conversations) had said. ^[45] Furthermore, verification was conducted to establish whether information in the historical data of intercepted conversations conducted from Ukraine with individuals located abroad corresponded with the same kind of data from abroad. This was done by comparing it with information obtained from Poland, Spain, and Belgium, and by comparing it with historical data from the Netherlands. That verification exercise identified similarities in date, time and phone numbers in several conversations conducted between Ukraine and the foreign country in question. ^[46] Network measurements conducted in eastern Ukraine also aided the investigation into the authenticity of intercepted conversations. These network measurements made it possible to determine the locations of transmission masts and the directions in which the antennas mounted on them can be pinged at a number of specific locations relevant to the evidence in this criminal case. ^[47] That information was then compared with the information concerning transmission masts and the antennas mounted on them that appears on the printed lists and files of intercepted conversations provided by the Ukrainian telecom providers. In all cases, locations specified in official records were checked by reporting officers against the data from the providers. ^[48]

Furthermore, it is also important to note that, in order to assess the authenticity of intercepted conversations and their content, a large number of those conversations were translated by sworn interpreters from Russian into English, and then again from the source language into Dutch, in order to identify any differences in translation. The court found no significant differences in translation relevant to the evidence.

Finally, fourteen intercepted conversations attributed to defendant Pulatov were examined specifically for tampering. Experts from the Lithuanian Forensic Expertise Centre in Vilnius examined whether those fourteen conversations contained any evidence of editing. After subjecting those intercepted conversations to various types of examination, the experts concluded that there was no evidence to suggest that the examined audio recordings had been edited. ^[49]

Although none of the aforementioned investigations encompassed all of the intercepted conversations in the case file, but only a selection/sample of them, the court is of the opinion that, when taken together, the various ways in which the authenticity of the intercepted conversations in the case file has been verified suffice to determine that the intercepted conversations in the case file do not reveal any evidence of tampering whatsoever. Therefore, in the opinion of the court, they can be considered authentic and reliable, and, for that reason, they can be used as evidence. Moreover, the allegations of manipulated intercepted conversations made by individuals have only been made in general terms and – with the exception of one comment by defendant Pulatov in a letter from his lawyers – have been made outside the case. Furthermore, none of the accused has specified the type of alleged tampering or which intercepted conversation or conversations are concerned. In addition, the court also notes that it does not consider content and location data of intercepted conversations in isolation when assessing the evidence, but rather considers it in relation to and in conjunction with other evidence in each instance.

Transmission mast data

In addition to what has already been considered above with respect to the transmission mast data contained in the case file, the court notes the following about that data.

Defendant Pulatov's counsel correctly argued, referring to the report submitted by a telecom expert retained by them ^[50] , that, generally speaking, transmission mast data does not indicate the exact location of a phone emitting a signal, but rather an area around the mast being pinged. What exact area that is depends on the location of the mast, the directions covered by the antennas mounted on it, the strength of the signals transmitted, and the landscape features of the surrounding area. These factors also determine the range, or reach, of the mast. Therefore, determining a phone's exact location based purely on the location of the mast being pinged is not straightforward. However, the court finds that successive pings over time to masts are of considerable probative value when determining a route travelled by a telephone. For although the exact location of a communicating phone relative to a specific mast may not necessarily be known, successive pings to masts – whose locations are known – give a strong indication of the phone's movement, the direction in which it is moving, and the times at which it is moving. In assessing the evidence, the court paid particular attention to routes travelled as indicated by transmission mast data, not to possible specific locations where a caller might be. Regarding the latter, the court points to that which it noted above: transmission mast data combined with the content of recorded conversations or text messages does, however, make it entirely possible to determine with the requisite degree of certainty where a specific user was located at the time of the intercepted call. By way of example, the court cites the intercepted conversation of 17 July 2014 at 12:51. ^[51] In the conversation, one speaker states that they are at the Furshet in Snizhne, and that they are able to see the other speaker. The phones that were used pinged masts located in the vicinity of the Furshet; the range of those masts covered the Furshet. ^[52] This combination of data means that there is sufficient evidence to show that both speakers were at that specific location at that time, despite the fact that the mast data may imply a greater range and thus, by itself, does not prove that the phones used were present at that specific location.

Incidentally, the court notes that the transmission mast data contained in the case file regarding defendant Pulatov matches what he himself states in his video statement regarding his whereabouts on 17 July 2014.

5.7

Photographic and video material

The case file also contains a large amount of photographic and video material, obtained through the SBU, or from witnesses, and/or retrieved from the internet. This material was scrutinised for genuineness and authenticity, but also with regard to the time and place at which the events that can be seen and heard on the material occurred. In a number of cases, the maker of the visual material or other persons who were present during the recording of the images, or were involved in the dissemination thereof, were questioned as witnesses. Furthermore, where possible, the recording equipment was examined by the Netherlands Forensic Institute. In cases where the prosecution deemed it appropriate, the material was also examined for evidence of tampering. An expert from the Royal Netherlands Meteorological Institute (KNMI) examined the footage and, based on shadows, light and cloud cover, assessed whether the weather conditions in the photo or video footage correspond to the weather at the location at which the photo or footage was said to have been taken or recorded on the specified date, and the approximate time at which the photo or video must have been taken or recorded.

In addition, the court instructed the investigating judge to have further expert analysis done,
inter alia on a video of a self-propelled Buk TELAR in Snizhne and a photograph of a Buk TELAR on a trailer in Donetsk. This analysis was done by Swedish forensic experts, who found no evidence of tampering. ^[53]

6. EVIDENTIARY CONSIDERATIONS

6.1

Position of the Prosecution

In essence, the prosecution called for the accused to be found guilty of the two principal charges as functional co-perpetrators. In the alternative, according to the prosecution, the court might find them guilty of the two alternative charges as (ordinary) co-perpetrators. In support of that position, the prosecution argues that the authenticity and reliability of all available evidence have been established. It follows from that evidence that a Buk missile was launched using a Buk TELAR, from a farm field near Pervomaiskyi. The said missile, that was deployed as part of the conflict being waged by the accused, struck flight MH17, causing the aircraft to crash, resulting in the death of all its occupants. Although the accused themselves did not fire this missile, each of them contributed to its firing by initiating and organising the deployment of the said Buk missile as a closely collaborating group of perpetrators whose purpose included shooting down aircraft. They carried out these actions as part of their leading military roles within the DPR; Girkin and Dubinskiy as senior officials operating remotely, Pulatov and Kharchenko as coordinators and commanders on the ground ‘in the field’. Together, the accused were in full control of the deployment of the Buk TELAR. The accused thus each contributed to the firing of the missile, necessarily with deadly consequence as its outcome. As the accused deployed and used others to carry out their premeditated criminal plan and passively, but also in part actively, contributed to its execution themselves, they can be held responsible as functional (co-)perpetrators, or in the alternative as co-perpetrators, for the crash of flight MH17 and for the murder of the occupants of the aeroplane. Should it not be possible to prove these legal variants, the prosecution adopts the position that the contribution by each of the accused can be characterised, as per the further or furthest alternative charges, as co-perpetration of incitement or co-perpetration of complicity.

6.2

Assessment of the court

6.2.1

Introduction

Firstly, the court finds it legally and conclusively proven that on 17 July 2014, flight MH17 crashed in Ukraine, more specifically in the Donetsk oblast, killing the 298 occupants of this aircraft, 283 passengers and 15 crew members, of whom the names are set out in an annex to the indictment (Appendix 1). It is not and has not been disputed that flight MH17 crashed at that time and in that place and that none of the 298 occupants survived this crash. ^[54]

The court further finds it legally and conclusively proven that flight MH17 was downed by a Buk missile launched using a Buk TELAR from a farm field near Pervomaiskyi. To that end, the court considers that there is an abundance of evidence that - especially when considered together and in context - justifies this conclusion. Similarly, there are no sufficiently convincing grounds to reasonably doubt this conclusion. The court arrives at this conclusion on the basis of the following considerations.

6.2.2

Was it a Buk missile originating from Pervomaiskyi?

6.2.2.1 Photographs of the inversion trail

Flight MH17 crashed in eastern Ukraine at 16:20 on 17 July 2014. At 19:23 - about three hours after the crash of flight MH17 - a photograph of a vertical smoke trail was posted on the Twitter account ‘WowihaY’, together with the suggestion that the trail originated from the missile that had downed MH17. ^[55] The person who posted the photograph on Twitter supplied the contact details of the creator of the photograph. This person was questioned (under his own name) as a witness and stated that he had taken two photographs from the balcony at his home in Torez after hearing two loud bangs, at 16:25 on 17 July 2014. Shortly afterwards, his statement continued, he went to the roof of his apartment building and also took photographs of the plume of smoke coming from the direction of the town of Hrabove (court: one of the crash sites). ^[56] The creator of the photographs stated that he had sent the original digital photographs to a friend, who posted the photograph online. The said friend contacted the Ukrainian authorities and the SBU subsequently approached the witness. On 20 July 2014, the witness surrendered the camera and the memory card to the SBU and kept copies of the photographs. ^[57] On 12 August 2014, the camera and memory card were seized by the investigation team. ^[58]

Counsel for defendant Pulatov argued that the photographs should be excluded from evidence because they may have been manipulated. In support of this, it was argued that the creator of the photographs has Ukrainian sympathies, his friend who posted the photographs online and received the original photographs has ties to the ATO, and the camera and memory card were in the possession of the SBU before being handed over to the investigation team.

The court once again considers that although having sympathies for one of the parties to the conflict and the fact that information was submitted via the SBU does not exclude evidence, it is grounds for caution. Specifically with regard to the photographs of the inversion trail therefore, the court notes the following. Not only were the creator of the photographs, together with his wife, traced and questioned about when and where the photographs were taken and what happened to them, but also the camera, memory card and the photographs themselves were examined in a variety of ways by various agencies that have no interest in the outcome of the investigation. This examination related not only to what could allegedly be seen on the photograph, but also where and when the photograph was taken, and whether the image in the photograph could have been edited. These findings confirm the statements of the creator of the photographs, as demonstrated by the following.

The photographs and the camera/memory card used to take them and on which they were stored, were examined by the NFI. The NFI sees no indications that the image on the photographs in question was manipulated. According to the NFI, any alteration to the original image would be reflected in the format in which it is stored (it would change from NEF to for example jpeg) or in the NEF numbers of the photographs (the amended file receives a new NEF number), and this is not the case with the files on the seized camera/memory card. The NFI is not aware of any software that permits the targeted modification of the image content of NEF files. Although bytes can be inserted, deleted or overwritten, this is haphazard in nature and would be expected to result in a clearly observable disruption in the image, which has not been observed. ^[59] In the court's opinion, this satisfactorily proves that the image itself was not manipulated. In this context, counsel for defendant Pulatov also referred to the statement of a witness who was at the scene and who allegedly observed that there were no electricity cables hanging at the location where the photographs were taken, while they can be seen on the photograph that is not zoomed in. However, the court considers this to be incorrect. The witness in question in fact specifically confirmed that he saw the cables hanging near the balcony. ^[60]

To verify the metadata of the two photographs of the smoke trail, the KNMI conducted investigations into the time at which the photographs were taken. According to the metadata, the two photographs were taken at 16:25 (consistent with the statement from the witness), seven seconds apart. The KNMI was able to verify this time
inter alia by comparing the photographs of the smoke cloud near the crash site taken shortly thereafter, from the roof, with a video recording of this smoke cloud, the starting time of which could be determined. ^[61] The court sees no reason to doubt the results of this investigation.

With reference to the comments of the KNMI regarding the nature of the trail (visible close to the horizon, vertically oriented, more highly developed near the horizon) ^[62] , the court concludes that the trail on the photographs is indeed an inversion trail and not a cloud or vapour trail from an aircraft. Given its shape and colour, the court sees no reason to assume that it could also be the result of the burning of a farm field, as argued by counsel for defendant Pulatov. On the contrary, the straight white striation combined with the grey cloud near the ground corresponds to the inversion trail appearing on photographs of the launch of a Buk missile. ^[63]

On the basis of the investigation, in which, by drawing in features of the landscape recognisable on the photograph, on a satellite image of the surrounding area, it was possible to ascertain information about both the place where the photograph was taken and the direction from which the inversion trail originates, the court concludes that the photographs were indeed taken in Torez in a southeasterly direction, and that the inversion trail roughly originates from the direction of Pervomaiskyi. ^[64] In view of the fact that the trail on the photograph is aiming straight up, it can be concluded that what the witness has stated in this regard, that the missile appeared to go straight over his residence, is correct. These conclusions, combined with the time at which the photographs were taken and assuming the position of MH17 at the time the aircraft disappeared from the radar ^[65] , justify the opinion that these photographs show the inversion trail of a missile launched from the direction of Pervomaiskyi in the direction of MH17 at around the time that MH17 crashed. In view of the above, and since the creator of the photograph that was posted on Twitter under his own name has been questioned as a witness, the court does not consider it necessary to interview as a witness the user of the Twitter account ‘WowihaY’ as conditionally requested by counsel for defendant Pulatov. Accordingly, the court denies this request.

The court considers that an internet search conducted by the investigation team in 2016 for photographs taken in the town of Snizhne revealed two other photographs of a smoke trail. The photographic files were uploaded to a website with the upload date 17 July 2014 and have 17 July 2014 15:22:23+02:00 and 15:22:33+02:00 as their 'File Modification Date'. ^[66] In an email message, the uploader indicated that he discovered the photographs on a web (page) of Snezhnyanskiy news on 17 July 2014. ^[67] According to the KNMI, the trail of cloud is exactly the same in structure and colour as the trail in the photograph from Torez. The cloud pattern on the photographs is also identical. ^[68] The landscape features visible on the photograph place the photographer in a building in the centre of Snizhne ^[69] and suggest that the inversion trail originated from a southerly direction. ^[70] Here too, the inversion trail leads in the direction of MH17's last observed position. ^[71] In the court's opinion, based on the similarities in shape, direction, stated time and direction of origin of the smoke trail, it may be assumed that these images feature the same inversion trail as seen in the aforementioned photograph from Torez. The fact that these photographs were taken separately, were quickly uploaded and were acquired by the investigation team at entirely different times and in entirely different ways mutually validates the authenticity of the images. The fact that the creator of the photographs from Snizhne has not been identified in no way detracts from this.

The court considers that the photographs from Torez and Snizhne each individually suggest only one direction for the origin of the inversion trail, but viewed in combination and taking into account the slope of the landscape ^[72] , the lines indicating the direction intersect each other slightly west of Pervomaiskyi.

The aforementioned photographs of the inversion trail - in particular the photograph from Torez - are therefore an important source of evidence for the actual launching of a missile in the direction of MH17 shortly before it crashed, and for the location from which it was launched. These conclusions - based on the photographs - are further supported by many other pieces of evidence. The court will address that evidence below.

6.2.2.2 Statements of witness M58

Witness M58 is a key eyewitness. Although counsel for defendant Pulatov has argued that the testimony of this witness is unreliable and should not be used in evidence, the court does not agree. The court will first give a brief account of the central thrust of witness M58’s statement, after which it will provide reasons as to why his statement is reliable and may be used in evidence.

Witness M58 stated that he was part of the reconnaissance group under the command of the accused Kharchenko ^[73] and that on the afternoon when MH17 was downed, he was at a checkpoint near an intersection on the road between Snizhne and Marynivka. ^[74] It can be concluded from the location where witness M58 marked the intersection on a satellite image ^[75] combined with the drawings he made of the intersection ^[76] , and his statements regarding that intersection ^[77] , that the intersection in question is the intersection with checkpoint on the T0522 road, just to the west of Pervomaiskyi. ^[78] The T0522 is also known as Gagarina Street. ^[79] At some point in that afternoon, he was standing in a field next to this intersection. It follows from the drawing he made of this intersection that this is the field in the northwestern corner of the intersection. He was standing near the tent (or tents) that had been erected in that field and heard something driving along the unpaved road in the field to the south of the field where he was positioned. ^[80] He described the sound as that of the caterpillar tracks of a tank. ^[81] A short time later he heard a loud explosion and saw a missile zigzagging and leaving a trail of smoke. ^[82] He saw how the missile flew towards the aircraft and the aircraft fell from the sky after the missile exploded. When he subsequently walked towards the intersection and looked into the adjacent field, he observed a Buk TELAR that was short of one missile. Subsequently, the Buk passed him at the intersection. ^[83] The court understands that wherever witness M58 speaks of a Buk he is referring to a Buk TELAR, since a Buk missile can only be (independently) fired by a Buk TELAR. The court considers that the field in which witness M58 states he saw the Buk TELAR standing short of one missile, is precisely the area where the smoke trail in the photographs from Torez and Snizhne discussed above originated.

Counsel for defendant Pulatov - citing among others a report by a forensic psychologist - argues that the testimony of witness M58 may not be used in evidence. In his report, this forensic psychologist analysed the various statements made by witness M58 and identified a large number of shortcomings in the way the statements came about, and identified contradictions in the statements as such, leading him to the conclusion that they are not reliable statements. Like the prosecution, the court finds that these examples of alleged deficiencies are so often based on an incorrect representation or misreading of the statements as such or of the circumstances under which these statements were made, that the court disregards the conclusions drawn in the report. This does not alter the fact that, in part in response to the line of defence presented by counsel for defendant Pulatov, but above all because of the requirements governing the use of evidence, the court must form for itself a view of the reliability of witness M58 and his statements. In doing so, the court will take into account what is known about his background, the manner in which he reported to the investigation team, the manner in which his statements were taken, any inconsistencies and peculiarities in his statements, and the extent to which his statements are corroborated by other public and non-public information in the case file.

The court considers that witness M58 reported directly to the JIT on 18 September 2018, with an initial email. In this email, he let it be known that he was a witness to how Boeing MH17 was downed. In the summer of 2014, he was in Ukraine with a group of like-minded people fighting alongside the insurgents. They were staying near the village of Snezhnoe. There was a checkpoint there. It later emerged that there was a Buk where they were and that MH17 was downed using that Buk. ^[84] Witness M58 stated his willingness to make a statement in his own name, which he did. He was questioned on a total of twelve occasions, including twice by the investigating judge.

Witness M58’s statements were examined by the investigation team for reliability, resulting in an official validation report. ^[85] In that report, a large number of facts or circumstances referred to by witness M58 were checked, mainly relating to his presence in that area and at the intersection near Pervomaiskyi on 17 July 2014, and attempts were made to validate those facts.

In his statements, witness M58 referred to a number of events, people and places which could be verified using open sources. These include, for example, his testimony about a bus accident on his outward journey between St. Petersburg and Moscow ^[86] , about the name of the person who welcomed them on their arrival in Donetsk, namely Gubarev ^[87] , and about the camp in Rostov on Don, in Russia, where he stayed prior to his departure for Ukraine. ^[88] His statements on these matters could be verified using open sources. Nonetheless, counsel for defendant Pulatov rightly noted that the possibility of verification using open sources limits the value of the verification, as the witness could also have looked up this information.

The court therefore considers more convincing the information provided by witness M58 himself during questioning, which can be corroborated on the basis of investigation results that are not or have not been made public. In this context, the court points to the recovered messages on the VK account from June/July 2014, which witness M58 posted under his own name in a discussion group, discussing his imminent departure. These messages were read to him by those questioning him and he was asked whether he recognised the messages. It is notable that witness M58 expressed doubts because he could not place some of the content of the posts. It subsequently emerged that he had been mistakenly presented with a part that did not originate from his posts: precisely the part he was unable to place. ^[89] Not only does this come across convincingly because he would only be able to point out the inaccuracy in the presented messages if they originated from him, but also because it illustrates he does not allow words to be put in his mouth and does not wish to substantiate his account with things he cannot remember. These posts therefore seem to confirm that he is certainly who he says he is, that he was sympathetic to the DPR and was intending to leave for Ukraine. The photographs submitted by witness M58 substantiate that he was indeed in Donetsk in mid-2014. ^[90] Moreover, witness M58 describes the building in Donetsk where they were stationed and points out the building on the map. The questions posed about these matters were open-ended. The information witness M58 provides about this building is
inter alia confirmed in an intercepted conversation between the accused Kharchenko and another DPR fighter, in which directions are given to find the institute on Boidukova Street in Donetsk. ^[91] The court considers that this did involve very specific information about the building and that the verifying intercepted conversations were not made public.

Finally, witness M58 also mentions a number of specific facts and circumstances of which he could only be aware if he actually belonged to Kharchenko's army unit and was in the field near Pervomaiskyi on 17 July 2014. For example, before Kharchenko's name was made public as a suspect, he had already testified about Kharchenko/Krot. Witness M58 stated that Krot was the commander of his reconnaissance unit and he also mentioned the names of many other individuals in Kharchenko's unit, such as Dikson and Ryazan. ^[92] This information is confirmed by other investigative findings in the case file and had not been made public at the time he made statements on this. Finally, a chat message ^[93] between witness M58 and Ryazan dated 25 April 2015 was discovered, which confirms they knew each other.

Witness M58 initially only described the launch site and only later testified that the said intersection was near Pervomaiskyi. In line with counsel for defendant Pulatov, the court notes that witness M58 did not spontaneously state that it was an intersection near Pervomaiskyi, but that he in fact only stated such after the reporting officer had mentioned the name of the village. Nonetheless, witness M58 had himself already drawn the intersection (appendices) and had already described it in detail (paved/unpaved road, rows of trees, road blocks, tent(s), trenches, surroundings) and, at the start of his first interview, in response to an open-ended question, had indicated that it was a checkpoint below Snizhne, in the area where they were located at the time. ^[94] In this case, the court considers it especially important that the said drawing and the said description and placement precisely match the intersection near Pervomaiskyi. The court does not see why the fact that he was presented with the place name Pervomaiskyi would still be significant under these circumstances, especially since it is not in dispute that this name had already been made public at various press conferences. If witness M58 had himself mentioned the name Pervomaiskyi, without encouragement, he could have been accused of mentioning it only because he had already heard it at a press conference. It could equally be argued that the fact that he himself does not mention the name confirms that he only wished to testify about what he himself could remember, and was attempting to avoid filling in gaps with information that came to him by other means. Whatever the case, more important than the name of the intersection is the fact that he mentioned and drew details that had not yet been shown or mentioned at the press conference, nor that could have become apparent from other openly accessible sources. In this context, the court paid particular attention to the following parts of his statement.

Witness M58 describes plants growing that resemble burdock. A photograph on one soldier's social media account that appears to have been taken in the field in question confirms the presence of this type of plant (a spear thistle resembling burdock is visible on it). Although it is a common flower in European meadows and roadsides, and thus not particularly unique, it is very specific information. ^[95]

In this regard, the court finds witness M58's statements regarding the tents set up by the troops in the field to be more convincing. During the interview on 30 April 2019, witness M58 mentions that they set up two tents. Later in that same interview, and in subsequent interviews, he expresses his doubt about whether it was one or two tents. Eventually, he indicated that it was one tent. Witness M58 also looked up a photograph of the type of tent. ^[96] The tent on this photograph is very similar to a tent visible at the intersection in the 2015 ARD report, albeit that that tent is at a different location. ^[97] A satellite image of the intersection in question near Pervomaiskyi, taken on 20 July 2014, shows pale ‘round’ patches at the spot where according to witness M58 the tent or tents were located. Those patches are not visible on a satellite image dated 16 July 2014. ^[98] The court considers that the inner circle of these two patches resembles the almost square shape of the tent on the photograph sent by witness M58. The dark border around this inner circle, in combination with the white border around it matches the phenomenon of a pathway around the guy lines. No information had yet been announced about the round patches, such that this information is information that witness M58 could only have known if he had actually been there. The fact that he inconsistently refers to one or two tents and the fact that he was mistaken about the precise location of the entrance to the tent in no way detracts from this.

The court considers that so many parts of witness M58's statement regarding his participation in the fighting on the side of the DPR can be verified, also according to information not shared, that the court sees no reason to doubt his statements in this regard. The same applies to his presence at the intersection in question on the day that MH17 crashed. Nonetheless, this does not mean that there is still no reason to doubt the substance of his account.

In line with counsel for defendant Pulatov, the court notes that throughout his various interviews, witness M58 made inconsistent statements about precisely what happened at the intersection that afternoon, for example in respect to the time at which the missile was allegedly fired, the precise spot where witness M58 was standing at that time, where the Buk TELAR was positioned in the field when he allegedly saw it from the intersection, and how high the aeroplane was flying when it was struck. Moreover, he stated that he saw the missile detonate next to the cockpit and that the weather was clear. This is notable, and it remains uncertain whether he was actually able to observe it so precisely given the distance and partial cloud cover at the time.

The possibility exists that witness M58 was at the scene that afternoon, but observed nothing at all that indicates the launching of a Buk missile from the farm field in question, and decided to make a deceitful statement about it. This could possibly explain the aforementioned inconsistencies and the more notable elements of his statements.

However, after examining the interviews and the manner in which contact with witness M58 took place, the court finds no indications for assuming such deceit. Firstly, it is not possible to see what interest he would have in doing so. At the time, witness M58 belonged to the separatists and was fighting at their side. In his statements, he still expresses his sympathy for the DPR and still stands up for them in his interviews. Moreover, it appears that he thought he was finished after sending the first email and would not hear anything more about it. It was only when it became clear that he would be facing many more interviews that he said he was willing to do so by name if he were be protected. In order to obtain that protection, he had to give up his entire life as he knew it, so it is highly questionable whether he has benefited. In addition, if someone intends to lie about something so important, it seems obvious that that lie would be better prepared and his testimony would be far ‘tighter’ and more consistent. At the very least, for example, the date would have been checked for accuracy.

But even assuming witness M58's sincerity and good intentions, the court is still faced with the question of whether the aforementioned inconsistencies in his statement detract from the evidentiary value of the substance of his account, namely that he heard the Buk missile being launched from the field next to him, at the intersection near Pervomaiskyi, that he saw it fly out and how it struck MH17, after which MH17 crashed.

The court notes that in subsequent interviews, witness M58 often revisited matters to which he had testified in previous statements. In doing so, he indicated that he was no longer able to remember certain things well and corrected himself. The court considers that such behaviour and the resultant inconsistencies in his statements may be the result of witness M58's wishing to give his account as honestly as possible, by not inventing things that he does not in fact remember and, even after making a statement, continuing to try and check whether what he has said is indeed true. Given the passage of time between the events and the interviews, and the hectic period about which witness M58 testifies, the court considers a certain degree of uncertainty about details which, at the time they occurred, he was unaware would be significant, to be normal. The said inconsistencies regarding the time, his exact location, the exact distance between the Buk TELAR and the intersection, and how high the aeroplane was flying are precisely details that fall into this category. On the one hand, this means that the evidentiary value of the statement with regard to such details will not be great, but on the other hand, that the inconsistencies do not detract from the statement when it comes to observations that by their nature must have made a far deeper impact, such as the actual firing of a Buk missile, the joy about striking a military aircraft, and the turning of that joy into dismay when it shortly thereafter emerged that not a military aircraft but a passenger aircraft was struck. Indeed, witness M58 does not hesitate for a moment as regards these impressive aspects.

When it comes to the question whether witness M58 could actually have seen that the missile detonated to the left of the cockpit, the court considers it not unlikely that based on what he subsequently saw during press conferences, witness M58 filled in the fact that the Buk missile detonated to the left of the cockpit, and that he actually stored this as a memory. However, the likelihood of filling in such a detail - to which no probative value can be assigned as a consequence - does not equate to the likelihood that witness M58 may also have imagined the substance of his statement. It is inconceivable that such an impressive event could be imagined.

In the opinion of the court, therefore, witness M58's statement - as summarised above - is reliable.

In addition, it is submitted by counsel for defendant Pulatov that the use of witness M58's statements represents a violation of Article 6 ECHR because the defence had insufficient opportunity to cross-examine the witness. However, the court is of the opinion that the use of witness M58's statements does not violate Article 6 ECHR. Counsel for defendant Pulatov requested an opportunity to question the witness, which request was granted. The questioning before the investigating judge took place over several days, during which counsel for defendant Pulatov and the prosecution were able to ask extensive questions, all of which were also answered by the witness. For security reasons, the interview was organised in such a way that counsel for defendant Pulatov and the prosecution were seated in different rooms from the witness, which rooms were connected by video link without sound. The replies first passed through a second investigating judge sitting in a third room, who did have an audio link to both other rooms. Witness M58's appearance was disguised with beard and glasses. The court considers that such concealment can hardly be seen as an inadmissible restriction, if only because there will be many witnesses who wear glasses and/or beards and who can hardly be required to remove their beards and glasses before an interview, so that their facial expression can be better observed. Moreover, the identity of the witness was clearly known to counsel for defendant Pulatov; only his current appearance was concealed. The fact that the answers of the witness to the questions from counsel for defendant Pulatov and the prosecution were not always fully communicated to counsel for defendant Pulatov and the prosecution may be considered a limitation. Here - as with the written record of his previous interviews - sections were omitted if they contained information that could jeopardise the witness' safety. While it raises a limitation, this redaction of his answers was deemed necessary by the investigating judge, on each occasion, in view of the compelling interest of the witness' safety. Furthermore, the prosecution was also unable to take cognisance of this information, such that it did not limit counsel for defendant Pulatov only. In addition, at the end of the interview that lasted several days, counsel for defendant Pulatov indicated that it had been able to ask all its questions. Finally, the court considers that the statement of this witness is neither ‘sole’ nor ‘decisive’ in the total evidence structure as discussed below, which consists
inter alia of validated photographs, videos, intercepted conversations and expert opinions. Under these circumstances, the court does not consider the use of witness M58's statements to violate Article 6 ECHR.

6.2.2.3 Satellite images

The court considers that analysis of the satellite images of the farm field also supports the conclusion that the farm field indicated by witness M58 was the launch site. A comparison between the satellite image taken on 16 July 2014 and those taken on 20 and 21 July 2014 shows that multiple changes took place between 16 July 2014 and 20 July 2014 which may indicate that a missile was fired in the intervening time.

In this regard, the court first refers to the most eye-catching dark-coloured triangular section in the northwest corner of the field. ^[99] The journalist who partially saw and filmed that part of the field on 22 July 2014 spoke of burn marks. ^[100] The outbreak of fire following the firing of a Buk missile is a consequence described by experts in the case file. ^[101] Firing causes a flame jet, which – depending on the surroundings – can cause a fire.

Another change that is shown by the satellite images to have occurred between 16 July and 20/21 July 2014 relates to the tracks running from the paved road along the unpaved path along the north side of the field, especially the tracks running down the middle of the unpaved path into the discoloured section of the field. The tracks leading into the field are more than three metres wide, just like those of a Buk TELAR. ^[102] The tracks are in the corner of the dark-coloured triangular section of the field indicated by the KNMI as the most likely section of the field for the launch based on the wind direction. ^[103] The circumstance that several fields in the area may have been burned, either in whole or in part, in the weeks before and after the disaster does not negate the fact that, between 16 and 20 July 2014, something caused a fire at that spot in the field and that this fits with the launch of a Buk missile and thus with the statement provided by witness M58 and the photographs of the inversion trail. In addition, the tracks are at the location that forms the highest and most strategic point in the area from which to fire a Buk missile, in exactly the southwestern and western direction from which the separatists expected the air strikes, as the court will discuss below.

Therefore, witness M58’s testimony – supported by satellite images – confirms not only that the inversion trail visible in the aforementioned photos is from a missile actually fired at MH17 and that it was fired from a farm field near Pervomaiskyi, but also that the missile fired was a Buk missile fired from a Buk TELAR
and that this Buk missile, in fact, downed MH17.

6.2.2.4 Intercepted telephone conversations, transmission mast data and videos

Regarding the use of intercepted conversations and transmission mast data, the court first states that it will discuss at length the basis for linking individuals to particular telephone numbers later in this judgment, when discussing the possible specific involvement of the various accused. That is also the part of the judgment (Appendix 3) which contains a discussion of the visual material and the authenticity analysis conducted on that material, and which provides the location of those items in the case file. At this point in the judgment, it is only relevant to consider precisely what was discussed by separatists by telephone, which movements the transmission mast data reveals and what can be seen in visual material, and not so much to consider who is talking; the court therefore regards that a reference to the relevant part of the judgment where that link is made sufficient at this stage.

The court considers that the fact that, in several intercepted telephone conversations between separatists on the morning of 17 July 2014, the arrival of a Buk, and that this should go to ‘Pervomaiske’ ^[104] is discussed, provides very convincing evidence that this field near Pervomaiskyi was the launch site and that the missile launched was a Buk. The court has already given due consideration in this judgment to how the authenticity of these conversations was established. In addition, the picture sketched in the conversations about where a Buk was coming from and where it was supposed to go is confirmed by the historical transmission mast data of the telephones of the people who, according to the intercepted data, had been assigned the various tasks.

Between the evening of 16 July 2014 and the morning of 17 July 2014, the telephones of those ordered to collect equipment at the border with the Russian Federation did in fact ping transmission masts that covered the route from Donetsk to the border with the Russian Federation and back again. ^[105] The telephone of the person tasked with escorting a Buk from Donetsk to ‘Pervomaiske’ in fact pinged successive transmission masts on the route from Donetsk via Snizhne to Pervomaiskyi in the morning and early afternoon of 17 July 2014. ^[106] The times at which the telephones pinged the various transmission masts are not the only evidence which aligns with the content of the intercepted conversations of that person at that time; ^[107] in several cases, a Buk TELAR was also captured on camera at a time that fits on the route to just outside Pervomaiskyi. In this regard, the court refers to the photograph taken on Illicha Avenue in Donetsk, the video recorded at the Motel roundabout in Donetsk, the video at Makiivka, the video in Zuhres and the photograph in Torez, each of which shows a Buk TELAR being transported in the direction of Snizhne on the same specific ^[108] Volvo flatbed trailer with a white cab. The images from Donetsk clearly show that Buk TELAR carrying green Buk missiles with a white head. The video at Makiivka shows that there were four missiles at that time. The photo and video of a Buk TELAR travelling south from Snizhne towards Pervomaiskyi show a Buk TELAR which is not being transported on a flatbed trailer, but which is driving independently at that time. According to an officer of the Dutch Royal Air Force, this circumstance indicates that that Buk TELAR was not far from its intended deployment site. ^[109] At the time when this video was recorded, that Buk TELAR was only a few kilometres from the field in question near Pervomaiskyi.

Defendant Pulatov’s counsel did not argue that the footage referenced here had been manipulated. Nevertheless, these images – as with the content of the intercepted telephone conversations and the historical transmission mast data – were also verified to the extent possible with respect to location and timing, and examined for authenticity. Again, no evidence of tampering was found.

The fact that a Buk missile was indeed fired is also confirmed in the telephone conversations that took place in the late afternoon and evening of 17 July 2014, in which this was stated in as many words. For example, at 16:48, less than half an hour after MH17 had crashed, Kharchenko reported to Dubinskiy that they had already downed one Sushka. In a telephone conversation at 18:44, Pulatov told Kharchenko that Kharchenko should tell ‘that one’ that the Sushka we hit had just downed a Chinese passenger aeroplane. At 19:54 a conversation took place between Dubinskiy and Girkin, in which Dubinskiy told Girkin that Pulatov had just told him that the Sushka had shot down the Boeing, and wanted to strike again, but was then shot down by their people with a Buk. ^[110] The court considers, as Girkin himself pointed out during this conversation, that this scenario put forward by Dubinskiy and Pulatov is completely implausible, if only because no Sushka was shot down that day. Moreover, both Ukrainian and Russian radar images show that no Sushka or other fighter plane was flying in the airspace in question. Rather, what should be inferred from these telephone conversations is that the Buk missile
was actually fired and shot something out of the sky. Initially, it was apparently assumed that the aircraft struck was a Sushka, but when it turned out to be a large civilian aircraft the scenario described above was disseminated.

The video recorded in Luhansk in the early morning of 18 July 2014 ^[111] also confirms that a Buk missile was in fact fired from this Buk TELAR. The video shows a flatbed trailer with the same features, carrying a Buk TELAR from which one missile is missing. It has been neither claimed nor shown that the footage in this video has been manipulated. The location where the video was recorded was extensively researched based on landscape features. ^[112] In the court’s opinion, it can be established that this video was in fact recorded in Luhansk on 18 July 2014 around the time of 04:50 shown in the metadata, and that it is the same Buk TELAR that had been transported in the previous day and taken to Pervomaiskyi.

To this end, the court first notes that the KNMI – assuming the video was made on 18 July 2014 – determined the time at which the video must have been recorded to be between 04:03 and 04:42 local time. ^[113] Although this is close to the time shown in the metadata, it is not sufficient to confirm that the footage shows the same Buk TELAR, nor that it concerns the early morning of 18 July 2014. However, this has been convincingly confirmed by numerous intercepted telephone calls, (associated) transmission mast data and witness S21’s statement. Indeed, these sources reveal that several members of the DPR were involved in removing the Buk TELAR used to shoot down flight MH17 to the Russian Federation shortly after the disaster, and that the same Buk TELAR was actually in Luhansk on this outbound route on 18 July 2014 between 04:30 and 05:00: the time when the metadata shows that the video was recorded. For example, in a telephone conversation on 17 July 2014 at 20:30, Girkin ordered Dubinskiy to arrange for the removal of the damaged tank; ‘the box’ that Kharchenko was guarding had to be evacuated to the border with the province. ^[114] Then, in a telephone call at 20:32, Dubinskiy relayed this order to Kharchenko and said that a flatbed trailer would come for the ‘box’. ^[115] At 23:14, Kharchenko was finally ordered by Dubinskiy to go to Krasnyj Luch and wait there for escorts who had just left from Luhansk and who would wait at that intersection. ^[116] At 23:32, Kharchenko reported to Dubinskiy that his men had left and gave Dubinskiy the number of a senior among the escorts, Leshy, so that he could be contacted. ^[117] The court finds that these conversations, and the terms ‘damaged tank’, ‘box’ and ‘it’ therein, refer to the Buk TELAR. In this regard, the court refers to the discussion below on interpretation of intercepted conversations.

Witness S21, call sign ‘Leshy’, is one of the people whom Kharchenko tasked with the removal. Witness S21 provided a statement about the progress of the first part of the journey. He stated that the Buk TELAR had been driven into Snizhne on a trailer with a white cab and was to be taken from Snizhne to Krasnyj Luch, where escorting would be handed over to others. S21 states that the plan for handing over the escorting of the Buk TELAR then changed and he travelled with the Buk TELAR as far as Debaltseve, after which the crew continued travelling with the trailer itself towards Luhansk. They knew the way from there. ^[118] This statement is corroborated both by the content of several intercepted conversations on S21’s phone and by the transmission mast data ^[119] , in which the route driven by S21 can be traced from Snizhne via Krasnyj Luch to Debaltseve. Although S21 did not comment on the further route towards the border with the Russian Federation, he did state that the crew wanted to follow the familiar route. The court considers that the route from Debaltseve via Luhansk corresponds to the route very likely to have been taken the day before on the outward journey. The following evidence confirms that this route was followed on the return journey. In a conversation between Bibliothekar and Dubinskiy, Bibliothekar said he had removed ‘the box’ and that it was now there, in that area. A minute later, Dubinskiy called Girkin and told him that Bibliothekar had personally taken it there. The court understands this to mean that the Buk TELAR had been taken across the border into the Russian Federation. ^[120] Bibliothekar’s telephone pinged several transmission masts on the route between Debaltseve and Luhansk that night, placing the telephone – and thus also the Buk TELAR – in Luhansk at 04:51, after which the telephone continued moving eastwards. ^[121] The court has established that the Buk TELAR that was in Pervomaiskyi that night, at that time, was travelling in that direction through Luhansk and thus can be seen in this video. This Buk TELAR was captured in various kinds of visual material on the morning of 17 July 2014 as it made its way to Pervomaiskyi. ^[122] A simple comparison of the number of missiles on the Buk TELAR shows that
one missile was missing that night, after the disaster, ^[123] a missile that had still been present that morning, before the disaster. ^[124] The court also sees this as confirmation that a missile was indeed fired by this Buk TELAR.

6.2.2.5 Detection of Buk components or Buk warhead components in pieces of wreckage and bodies

Finally, the court also bases the evidence and its finding that a Buk missile was actually fired at MH17 and that it was that missile which actually took down the aeroplane on the findings of the NFI and the Royal Military Academy (RMA). In its assessment, the court also considered the observations made by the AFP as part of its preliminary technical investigation. The observations made by specialists as part of the preliminary technical investigation do not qualify as expert evidence within the meaning of the law; however, the observations described by these employees and to which the court refers are observations which can be made without specific expertise. Moreover, these observations were also made by the court itself on images shown at the hearing. Consequently, the court sees no reason why these observations should not be included in its assessment.

Many fragments found at or near the crash site that may have originated from a weapon were examined. In its assessment, however, the court only took into account findings regarding those fragments that are either obviously related to the cause of the disaster because they were found in the bodies of victims or were embedded in pieces of wreckage, or are of some value in identifying the type of weapon used due to their surface characteristics and/or their metallurgical composition.

SIN AAHJ9117NL: bow-tie-shaped destructive element

In the body of one of the crew members in the cockpit, one specific object was found, among others. This is the object referred to as SIN number AAHJ9117NL, weighing 5.72 grams. ^[125] Although one side of the object appears to be deformed, the court agrees with the NFI’s ^[126] identification that this object has a clear — though incomplete — bow-tie shape. In particular, the symmetrical notch in the centre of one side and the relative depth of that notch, combined with the reflected undulation and protruding point on the opposite side which is particularly visible in the photo of the reverse side ^[127] , provide the basis for this visual identification. This shape corresponds to the shape of the bow-tie-shaped destructive elements that are used solely in the (new) 9N314M warhead, which is used only in a Buk series 9M38 missile (model 9M38 or 9M38M1). ^[128] The court finds it inconceivable that the object found in the body was originally a square destructive element from an (old) 9N314 warhead that was deformed upon entering the aircraft. This would mean assuming that, in its trajectory, the destructive element had, after detonation but before it entered the crew member's body, been struck on both opposite sides in exactly the same place. This is inconceivable, if only because the fuselage of the aircraft was the only barrier between the warhead and the crew member's body; consequently, there were not multiple similar barriers that the destructive element could have struck. Furthermore, none of the destructive elements found in the bodies or in the pieces of wreckage weighed over 8.1 grams. ^[129] The 9N314M warhead contains three types of destructive elements: filler elements of 2.1 grams, square elements of 2.35 grams, and bow-tie-shaped elements of 8.1 grams. ^[130] In a type 9N314 warhead, the same square elements of 2.35 grams are found, but also block-shaped elements of 10.5 grams. ^[131] If a 9N314 warhead had been used, one would expect to find destructive elements weighing more than 8.1 grams.

A metallurgic comparison of this destructive element was carried out with other destructive elements found in the bodies and pieces of wreckage from MH17, and with bow-tie-shaped destructive elements from six reference 9N314M warheads. This research shows that the bow-tie-shaped destructive element is indistinguishable (or barely distinguishable), in metallurgical terms, from the composition of other destructive elements that were originally bow-tie shaped recovered from the bodies and pieces of wreckage (destructive elements found that weigh more than the square fragments from a 9N314M warhead), and that the composition of those destructive elements is indistinguishable (or barely distinguishable) from bow-tie-shaped destructive elements from any of the reference 9N314M warheads. ^[132] Contrary to arguments presented by Pulatov’s defence, a comparison of the composition of the various destructive elements found does not make it possible to establish whether one or more fragmentation heads was involved. The expert witness from the NFI points to studies on six reference warheads, in which destructive elements of one warhead were compared in terms of their metallurgical composition and showed a similar range of variation to that observed among the destructive elements found. ^[133] Therefore, the variation observed in no way warrants the conclusion that two warheads must have been involved.

Defendant Pulatov’s counsel has argued that the object found cannot be the unique bow-tie-shaped type of destructive element because it is too light for that. In this regard, defence counsel points to studies by Almaz-Antey, the manufacturer of the Buk (or its legal successor), which are said to show that the weight loss of a destructive element that is still recognisable as bow-tie shaped after detonation is only 3-10%, and thus 0.81 grams at most, and that bow-tie-shaped destructive elements that no longer have a recognisable bow-tie shape after impact can lose up to 21-52% of weight. ^[134] Defendant Pulatov’s counsel has pointed out that these findings by Almaz-Antey are recorded in numerous photographs of target plates and the target aircraft that appear in Almaz-Antey’s Field Test report, as well as the results of numerous tests documented in reports, carried out throughout the period in which the Buk missile was being developed and manufactured.

The court takes into account that several arena tests were conducted with a 9N314M warhead as part of the criminal investigation in order to investigate the operation of a Buk missile. This involved several agencies, including the Belgian RMA. An expert opinion provided by the RMA shows that in an arena test involving a full missile with a 9N314M warhead, many light destructive elements (less than 0.5 grams) were found after detonation. The reason for this, according to the RMA, is the break-up of the primary (warhead) destructive elements. ^[135] It was also observed that some bow-tie-shaped destructive elements ^[136] exhibited a significant decrease in weight after detonation (weight before detonation was 8.1 grams and after detonation between 2.5 and 8 grams). ^[137] Consequently, the results of these tests show that it is quite possible that the destructive element with SIN number AAHJ9117NL weighing 5.72 grams ^[138] was originally a bow-tie-shaped destructive element.

As regards whether the court should see grounds in Almaz-Antey’s conclusions to doubt the aforementioned conclusions of the RMA, the court considers the following. The court holds that Almaz-Antey’s substantive expertise on the subject cannot reasonably be at issue, since, as the designer and manufacturer, it will unquestionably be familiar with the characteristics of its product. Nevertheless, Almaz-Antey cannot be seen as an independent and impartial expert in this case. First of all, Almaz-Antey is a state-owned company, affiliated with the authorities of the Russian Federation. Although, as already discussed, some links between an organisation and an authority need not call the independence and impartiality of that organisation into question, in the present case this is indeed so. The authorities of the Russian Federation, to which Almaz-Antey is affiliated, have - as the court has found above - wrongly denied any involvement in the conflict in eastern Ukraine. In addition, they have denied any involvement in the MH17 disaster. In the context of that denial, the authorities of the Russian Federation have repeatedly presented evidence that sought to show that the Ukrainian authorities, rather than the authorities of the Russian Federation, were responsible for the MH17 disaster. On several occasions, however, this so-called evidence was found to have been falsified or there were evident traces of manipulation. For that reason alone, Almaz-Antey’s affiliation with these authorities detracts from its independence and impartiality and, as such, also from it cogency. It should also be noted that Almaz-Antey itself has an interest in the outcome of the investigation on the points that it reports on. After all, sanctions were imposed on Almaz-Antey by the European Union (EU) in connection with the MH17 disaster. At its press conference on 2 June 2015, Almaz-Antey explained at length how it intended to demonstrate that it had nothing to do with the disaster and that the sanctions were unjustified, by presenting the results of its own investigation at that press conference. This underlines the company’s own interest in the outcome of the investigation that it conducted, and thus its lack of objectivity.

However, the court considers that the findings and conclusions of experts in the field who are non-independent or non-objective are not without merit for that reason alone. It is quite possible that the findings and conclusions of such experts in the field are indeed correct. However, in order to convince the court of the accuracy of its findings, Almaz-Antey, or rather its representative, would have to substantiate its findings in a manner that is fully clear, transparent, logical, and verifiable. Almaz-Antey’s conclusions are substantiated only by assertions and references to its own experience and research. Consequently, the court sees insufficient reason to doubt the results of the arena tests that were clearly explained and analysed by the expert witness from the RMA appointed by the investigating judge.

With regard to the reports by an American agency submitted by counsel for defendant Pulatov, the court finds that the reports drawn up by this agency do not change the above. Quite apart from the fact that these are unsigned reports, meaning that it is unclear who exactly wrote which report and what expertise the author may have, the court notes that the author - with regard to investigation into the weapon - does nothing more than repeat the conclusions of Almaz-Antey based on the assumptions and findings provided by Almaz-Antey, without any further substantiation or research of his or her own. Consequently, these reports provide little added value.

The above considerations with regard to the weight of the bow-tie-shaped destructive element also apply to the fact that no, or hardly any, bow-tie-shaped puncture holes were observed in the fuselage of MH17. Almaz-Antey and, subsequently, the U.S. agency consulted by defendant Pulatov’s counsel, argue that the fact that no bow-tie-shaped puncture holes were found in MH17’s fuselage means that MH17 could not have been struck by a Buk missile with a 9N314M warhead. To support this conclusion, reference is made to a static test conducted by Almaz-Antey, in which it detonated a 9N314M warhead to the left of the cockpit of an Ilyushin 86 (IL86) which is similar to a Boeing. Many bow-tie-shaped holes could be observed in the skin of the IL86 afterwards, which were not observed in MH17. However, the court considers that — quite apart from the question of whether, contrary to the RMA’s expert witness’s statement, ^[139] no bow-tie-shaped holes can in fact be observed on the wreckage of MH17 — it is impossible to see how the outcome of a static arena test on witness plates or on a stationary IL86 compares to the dynamic situation at an altitude of ten kilometres with regard to the shape of the puncture holes. As pointed out by the expert witness from the RMA, conditions in a dynamic situation at an altitude of ten kilometres (temperature, cabin pressure, and above all velocity vectors) are so fundamentally different that this may explain the absence of bow-tie-shaped holes. The court considers it highly plausible that, even if a bow-tie-shaped destructive element were to strike the skin of the aircraft with the bow-tie side flat, the particularly high forward velocity of the missile alone (over 3,000 km/hour), ^[140] the even higher speed of the destructive elements as a result of detonation, and the velocity of the aircraft in the opposite direction (915 km/hour) ^[141] mean, empirically, that there can be little or no question of an equally perpendicular puncture in the skin of the aircraft leaving behind a recognisable bow-tie shape.

Nor is it a plausible argument that it cannot have been a 9N314M warhead, since the tests conducted by Almaz-Antey lead one inescapably to the conclusion that many more bow-tie-shaped destructive elements would in that case have been recovered. Once more, the court repeats its above considerations regarding the value of Almaz-Antey’s assertions and refers to the findings of the NFI and the RMA, which refer to the break-up of primary destructive elements into smaller parts observed during the arena test carried out by the JIT, and which also indicate that another seventeen destructive elements were found that may have originally been bow-tie shaped, as indicated by their shape ^[142] or composition ^[143] and weight (between 2.5 and 5.76 grams). ^[144] The deformation and weight reduction are the consequence of dynamic detonation at high altitude. ^[145] In addition, many destructive elements did not strike the aircraft and many of the destructive elements that did strike the aircraft may have been lost because not every piece of wreckage was recovered, and those pieces of wreckage that were recovered were transported, which may also have resulted in the loss of destructive elements. ^[146]

Therefore, the court finds that the destructive element found in the crew member’s body is indeed a bow-tie destructive element, unique to the 9N314M warhead solely used in a 9M38-series Buk missile, and does so based on the aforementioned findings regarding the surface characteristics and metallurgy, considered collectively and in relation to one another. On this basis alone, the possibility that MH17 was shot down by another weapon can be ruled out. Nonetheless, the court will discuss two more fragments that point in the same direction, which strengthens the above conclusion still further.

SIN AAHZ3650NL (green lump from groove)

A second fragment of interest was found in the groove of the left cockpit window. It is a green lump which could only be detached notably by grinding off pieces of the frame. ^[147] The AFP examined the surface characteristics of the lump, such as its colour, shape, milling, coarse machining, and fine machining ^[148] , and, after comparing it with reference missiles of type 9M38 and 9M38M1, concluded that the lump matches the base plate of both of these types of Buk missile. The court has no doubt that the green lump is part of such a base plate, in view of the many surface similarities that the court also observed for itself in the photographs of this fragment ^[149] . The court considers it to be out of the question that these could also be similar launcher fragments from a different weapon as suggested by the expert witness from Almaz-Antey. Firstly, because the expert witness from the RMA stated, based on research on many missile systems, that connector plates are unique items in a missile system, since they are unique to the interface that exists between a specific missile and a specific platform. ^[150] Secondly, because research was conducted into the metallurgical composition of the green lump, which showed that it is indistinguishable from the material from which the base plates of the two reference Buk missiles (9M38 and 9M38M1) are made. ^[151]

As such, the court considers that the green lump has significant identifying value.

SIN AAGK3338NL (lump from frame)

The same also applies to the final fragment to be discussed by the court in this context, which is a piece of metal found coiled and wedged into a truss in the frame. ^[152] The AFP also examined the surface characteristics of this piece of metal, such as its shape, markings, and traces ^[153] ; after comparing it with reference missiles of type 9M38 and 9M38M1, the AFP concluded that the piece is a visual match with the slide plate of both these Buk missiles. The metallurgical examination yielded the same result as the examination of the green lump from the groove; this means that the composition of this lump matches that of a 9M38 missile as well as that of a 9M38M1 missile. ^[154] This dynamically embedded lump is also unique to a Buk weapon system, according to the RMA expert. ^[155] The court therefore also attributes significant identifying value to this fragment.

And so it is that (at least) three objects have been found that necessarily originated from the weapon that struck MH17, that all these objects — based on their surface characteristics, and certainly in view of their metallurgical composition and in connection with each other — identify the weapon as a Buk missile from the 9M38 series and that none of these objects which relate to the cause of the disaster are indicative of a weapon other than a Buk missile. In light of this, the court finds that these items of evidence, alongside the testimony of M58, are highly convincing regarding whether MH17 was in fact struck by a Buk missile of the 9M38 series, which was carrying a 9N314M warhead.

The fact that traces of the substance PETN were found on some pieces of wreckage that were not, or could not have been left by the Buk missile does not provide any reason to doubt this conclusion. Indeed, given that, unlike the fragments embedded in bodies or the wreckage, no direct relationship can be established between that substance and the explosion that struck the aircraft, there are many reasons why it may have been present.

6.2.2.6 Interim conclusion regarding the cause of the crash of flight MH17

In view of all the above, the court finds lawful and conclusive evidence that a Buk TELAR was present in the farm field near Pervomaiskyi on 17 July 2014, and that it was an operational Buk TELAR, which also fired a missile in the direction of MH17 that consequently downed flight MH17 and caused it to crash. The court finds that each of the aforementioned sources (the photos from Torez and Snizhne, the statements by M58, the satellite images, the intercepted conversations and transmission mast data, the photos and videos of a Buk TELAR on 17 and 18 July 2014, and the findings with regard to the fragments in the bodies, the objects in the frame and the groove of the aircraft, also based on the examination results from the NFI and the RMA) constitutes strong evidence in and of itself in support of the conclusion that MH17 was, in fact, struck by a Buk missile. However, considered collectively and in relation to one another, the court finds that this conclusion is established beyond reasonable doubt.

Following on from all of the above, the court further notes that the suggestion (advanced by a number of the accused, and by third parties outside the courtroom) that all of the abovementioned pieces of evidence were manipulated ignores the fact that what is at issue here is not a single photograph, video, or intercepted conversation, but a multitude of different types of evidence that in many cases were readily available. The court deems it inconceivable that such a quantity of evidence of different types could have been fabricated so quickly, effectively and consistently without leaving a single trace. Indeed, the evidence has been thoroughly scrutinised on behalf of both the prosecution and the court by various experts, from various disciplines, from many different countries, who have no involvement in the conflict and no interest in the outcome of the investigation, and no trace of manipulation has been found.

6.2.3

Specific lines of defence of counsel for Pulatov regarding the cause

The court understands the other line of defence put forward by counsel for defendant Pulatov regarding the cause of the MH17 crash to be as follows: the defence argues that the farm field near Pervomaiskyi could not have been the launch site because it was unsuitable for firing a Buk missile in the direction of MH17 on account of the row of tall trees on its northern side. The defence has also argued that expert evidence shows that any Buk missile must have been fired from the area around Zaroshchenske, or at least that this remains a possibility as many lines of investigation have not been pursued. Furthermore, counsel for defendant Pulatov, citing a report by an American investigation agency, put forward what it considers to be a much more plausible scenario. The court will deliberate on these explicitly substantiated positions below.

The farm field was unsuitable

According to the statement of specialists in the field of air defence weapons, a site must meet certain requirements for the deployment of a Buk TELAR; not any site will suffice. The court considers that the north side of the field – slightly to the left of the middle of the field – meets these requirements. For instance, the ground is accessible, secured by a separatist checkpoint and free of high-voltage cables. Furthermore, the field is at the highest elevation in a five-kilometre radius and barely visible due to the rows of trees. In addition, the row of trees on the north side of the field near Pervomaiskyi provides direct cover. ^[156] As previously explained, it is therefore a suitable site to position a Buk TELAR if a target is expected from a westerly or southwesterly direction. However, MH17 was approaching from a west-northwesterly direction.

Counsel for defendant Pulatov – citing the statement of witness RC02, who has experience in the deployment of a Buk weapon system – submitted that a Buk TELAR should be positioned at least 100 to 150 metres away from woods and bushes, so the row of trees on the north side of the field would have obstructed the launch of a Buk missile in the direction of MH17.

The court considers that witness G9462, an officer of the Dutch Royal Air Force, was shown a satellite photo of the farm field in question and explained that the row of trees on the north side need not be an obstacle if there is at least 20 metres between the row of trees measuring about eight to ten metres in height and the launch site, provided the target is at an altitude of more than 3,300 metres. ^[157] Witness RC02 also indicated that the distance depended on the angle of the missile and the need to avoid hitting the woods and bushes. ^[158] As witness G9462 was presented with a very concrete picture of the situation on the ground, in combination with the data on MH17, rather than seeing a contradiction between the statements of witnesses RC02 and G9462, the court considers that witness G9462’s statement contains more specific details. Based on these more specific details, the court considers that in the summer of 2015 the trees were estimated to be about 12 metres tall, which very probably means that in July 2014 the trees were already taller than the eight to ten metres assumed by witness G9462. The court holds, however, that it can be inferred from the aforementioned statement by witness G9462 that this does not mean that it was impossible to launch a Buk missile from the field in question towards MH17. After all, the decisive factor is whether the signals from the radar to the target are obstructed by the row of trees, and that depends on the altitude of the target and the distance between the radar on the Buk TELAR and the row of trees. A proportional increase in the distance from the row of trees (24 to 30 metres instead of 20 metres) will, therefore, compensate for the additional height of the trees (12 metres instead of eight to ten metres). As the highest and, therefore, most suitable location in the field – measuring perpendicularly – is 45 metres from the row of trees, that was a possibility. Moreover, the field and, by extension, the row of trees in the northwest corner of the field (the direction from which MH17 approached) is more than 2.5 metres lower than the middle of the field. ^[159] More importantly, however, the court considers the fact that MH17 was not flying just above 3,300 metres, but at an altitude of over ten kilometres. Therefore, the row of trees would not necessarily have interfered with signals from the radar to MH17.

Counsel for defendant Pulatov has cast doubt on witness G9462’s statement, arguing that he is not an expert on the Buk weapon system. Although this witness – unlike RC02 – does not have personal experience of deploying a Buk TELAR and also states that he is not familiar with its ‘buttons and details’, in his long career at, among others, NATO as coordinator of the Air Tasking Order, he has also studied the Buk TELAR at strategic and tactical levels. This involves knowing how the enemy deploys the weapon systems, which is relevant for assessing this point. His detailed statement also attests to this knowledge. Unlike counsel for defendant Pulatov, the court is therefore of the opinion that, given this experience, witness G9462 is well placed to assess whether – and, if so, under what conditions – the farm field in question near Pervomaiskyi could have been used for the deployment of a Buk TELAR in this specific situation.

Was the missile actually fired from Zaroshchenske?

Counsel for defendant Pulatov has argued that Almaz-Antey’s findings show that, if MH17 were shot down by a Buk missile, it must have been fired from an area 24 kilometres west of Pervomaiskyi. Based on the pattern of damage on the wreckage of MH17, Almaz-Antey calculated the area from which the Buk missile must have been fired to cause the pattern of damage observed.

Almaz-Antey concluded that it must have been fired from an area near Zaroshchenske. According to counsel for defendant Pulatov, Almaz-Antey’s findings therefore show that the Buk missile could not have been fired from a farm field near Pervomaiskyi.

First, the court notes that – in view of all the evidence already discussed above that demonstrates, legally and beyond doubt, that the Buk missile was fired from a farm field near Pervomaiskyi – casting reasonable doubt on this conclusion can only be achieved by providing highly convincing reasons.

Counsel for defendant Pulatov refers to Almaz-Antey’s reports and the explanations thereof provided by one of Almaz-Antey’s experts on the subject to the investigating judge. In this respect, the court reiterates what it has already considered above with regard to Almaz-Antey’s lack of independence and objectivity and the implications this has in terms of the cogency of its reports and findings and those of its representative. No value can be attached to its findings unless they are verifiable and its reasoning absolutely clear, transparent and reproducible. The court finds that it does not itself have the specific expertise required to assess whether Almaz-Antey’s findings meet this requirement; It considers the independent experts from the Netherlands Aerospace Centre (NLR) and the RMA who were interviewed by the investigating judge – also with reference to the previously discussed expertise of the expert witnesses appointed by the investigating judge – certainly capable of doing so. The court notes that, quite apart from the fact that both of these bodies rule out, on the basis of their own calculations, that the launch area could be near Zaroshchenske, the expert witnesses of the NLR and the RMA agree that the calculations of Almaz-Antey are not transparent on this point. As the NLR puts it, Almaz-Antey primarily comments extensively on other reports, providing occasional conclusions of its own, but these conclusions are not supported by a methodology that the NLR can agree with. The RMA’s expert witness indicates that Almaz-Antey does not provide any transparency as to how the quality of the similarities between simulated and actual damage was measured. ^[160] Almaz-Antey’s findings therefore comprise a great many positions and conclusions, for which no reproducible substantiation is provided. Moreover, in the court’s opinion, these are fundamental matters that go to the heart of the calculations. The court notes that, when the investigating judge asked about this – and clearly did not request an overview of alleged results, but an explanation as to how the results were obtained –, Almaz-Antey’s expert referred to classified computer software that could possibly be inspected by making an appointment to visit the company’s premises (in the Russian Federation) to do so. ^[161] However legitimate the possible reasons for classifying such information may be, reporting in this way is not clear, transparent or reproducible. For that reason alone, therefore, the reports and findings of Almaz-Antey and its expert witness lack the required cogency.

The American agency also referred to the calculated launch area. This report criticises the findings of the NLR and the RMA, and, in a reference to the findings and reference data of Almaz-Antey, without any substantiating argument, it avers that the conclusions of Almaz-Antey are correct. The report by the American agency also fails to clarify why the reference data, findings and conclusions of Almaz-Antey are allegedly correct and, as a consequence, still fails to lend the necessary cogency to the statements made by Almaz-Antey.

Could the missile actually have been fired from Zaroshchenske?

Counsel for defendant Pulatov has argued that insufficient investigations were carried out into the possibility that the Buk missile was fired by the Ukrainian army, from the area around Zaroshchenske. According to defence counsel, the investigation team missed a great many opportunities to investigate this and other scenarios, and, for this reason, it cannot be concluded that the crash must have been caused by a Buk missile fired from a farm field near Pervomaiskyi.

The court considers that the downing of MH17 was not a covert crime that was only discovered after a considerable period of time, but that MH17 was shot out of the sky in broad daylight at an altitude of over ten kilometres. In view of the public nature and the tremendous shock caused almost immediately by the visible consequences of the crash of the aeroplane, it is eminently a crime in which it can be expected that myriad tactical evidence regarding the possible course of events would surface very quickly. The fact that this also occurred in this case is therefore no reason for suspicion. The court also considers it to be self-evident, and in no way indicative of tunnel vision, that the JIT carried out further investigations based on these indications, especially as the JIT did indeed investigate many other scenarios besides the main scenario. For example, it investigated whether MH17 might have been shot down by a fighter jet. ^[162] However, this scenario has been discarded for a number of compelling reasons. In particular, the court considers the fact that, according to the cockpit voice recorder, just before the recording failed, not a word is said about an attacking fighter jet flying nearby; nor do the radar images – Ukrainian radar images and Russian images – show a fighter jet flying near MH17. Therefore, other scenarios were indeed investigated and reasonably ruled out. However, irrespective of whether the opportunities available to investigate any such other scenarios were fully exhausted, the fact remains that, as has been explained above, the findings of all the investigations convincingly substantiate the facts described in the indictment and thus already exclude the scenario put forward by counsel for defendant Pulatov and other scenarios. Indeed, if lawful and convincing evidence irrefutably and conclusively demonstrates that MH17 was downed by a Buk missile, fired from a farm field near Pervomaiskyi, then this already excludes any other scenario – including the scenario that the crash was caused by a Buk missile fired from the area around Zaroshchenske. It is, therefore, unnecessary to exhaustively follow up other lines of inquiry. The question as to who had control of Zaroshchenske is in any case irrelevant, given that four individuals, and not one of the parties to the conflict, are on trial in this case.

Does an alternative scenario fit the evidence?

Counsel for defendant Pulatov has argued that, even if one accepts the evidence in the case file, the way is still open for the possibility of another scenario. According to counsel, there is another credible and not implausible interpretation which does not conflict with the evidence, but which is incompatible with finding the charges proven, such that – despite the evidence – there should be an acquittal. To support the aforementioned argument, counsel for defendant Pulatov submitted a report by the aforementioned American agency, in which it formulated an alternative scenario that the agency considers more plausible than the main scenario. To summarise, the American agency considers it completely implausible that the well-trained, professional crew of a Buk TELAR could have mistaken MH17 for a fighter jet. After all, MH17 was flying at high altitude, in one direction and at a constant speed, and had also been flying in a known civil aerial corridor (L980) over Ukraine for some time. The American agency considers it more plausible that a Ukrainian Buk TELAR must have fired a Buk missile from an area slightly to the east of Zaroshchenske, aimed at an Air India aeroplane that had just crossed the border with the Russian Federation, travelling from the east. Indeed, this aeroplane was unidentified on the radar for a brief moment. In that instant, the Ukrainian military could have assumed, based on the radar images, that it was a Russian fighter jet posing a threat and passed on the information about it to the Buk TELAR. Then, when the aeroplane was identified on the radar a little later as an Air India civil aeroplane, the information had already been passed on to the Buk TELAR and, in all the commotion, nothing was done with the subsequent identification. As the court understands it, this was the scenario suggested. After the Buk missile was launched towards the Air India aeroplane and after the Buk missile had switched to the on-board radar, this radar would have looked for the nearest and largest metal object to ‘lock on’ to: MH17 approaching from the west. This scenario is referred to by counsel for defendant Pulatov as the ‘lock-on, lock-over’ scenario.

The court first points out that this scenario is already refuted by the previously discussed evidence and, as such, is not an alternative scenario that does not contradict the evidence. For that reason, it requires no further deliberation. For the sake of completeness, however, the court notes the following.

The scenario described by the American agency similarly implies that the well-trained and professional Buk TELAR crew selected a large aeroplane flying at high altitude through a known aerial corridor as a target. Regardless of whether this scenario sounds much more logical due to a brief moment in which it was not possible to identify the aircraft conclusively, more importantly, this scenario is technically impossible and therefore completely implausible.

Referring to the Buk TELAR technical manual ^[163] and other documents, in the case file it is explained how a Buk missile is launched from a Buk TELAR operating alone (Standard Operating Procedure ^[164] ) .

When a Buk TELAR is deployed, its radar scans and visualises a 120-degree area. The radar has a range of between 85 and 100 kilometres. Once a target is known, the Buk TELAR’s radar detects it within this area by emitting signals that are reflected by the object and picked up again by the radar. The altitude, speed, distance and course parameter of the object can then be read in the Buk TELAR. The commander then gives the order to track the target, reducing the radar angle from 120 to ten degrees, thereby continuously emitting signals to the target. The Buk TELAR operators point the instruments towards the target, and the Buk TELAR’s lock-on buttons are engaged. The target is then tracked automatically, and an interception point – the point where the missile will intercept the target – is calculated. The launch pad is directed towards the interception point. The commander checks the target’s parameters, such as distance, azimuth and speed, as well as the overall functioning of the Buk TELAR. The missiles are put into target mode. The missile’s gyroscope is activated and loaded with the object’s flight data. The flight path to the object is also transmitted to the missile. Three seconds before the target comes within shooting distance of the Buk TELAR, the computer issues a ‘target in launch area’ signal and the target illuminator – the radar that guides the missile to the target – is activated. The commander then executes the firing procedure. A missile cannot be launched until all of the conditions are met; that includes being within firing distance of the calculated interception point.

After firing, the missile’s on-board receiver is activated after 1.2 seconds. After a while, the missile’s radar head receives the echo from the target. Until then, the missile continues to receive target data from the Buk TELAR via a secure radio link. Once the missile’s on-board receiver receives the echo of the Buk TELAR signal reflected by the object, the computer inside the missile verifies the flight path and, if necessary, calculates an adjustment accordingly. The missile then flies towards the reflecting object and detonates in its vicinity. If, before such time, the illumination signal from the Buk TELAR is suspended or the TELAR turret is turned away from the target, the missile will no longer receive reflected signals and will self-destruct within two to four seconds.

The brief description, provided above, of the way in which a Buk missile is fired from a Buk TELAR establishes that the alternative scenario put forward by counsel for defendant Pulatov is impossible. The fact that, at the time MH17 was struck, the Air India aeroplane was flying well out of range of a possible Buk TELAR positioned at Zaroshchenske is not in dispute. The American agency responded to this observation by pointing out that ‘the fog of war’ must be taken into account and that a decision may have been made to fire the missile pre-emptively in the hope of changing the aeroplane’s course or else being able to strike it with one of the other three missiles. The court does not quite see how a Buk missile’s proximity detonator would go off if there were no aeroplane in the vicinity and how the crew or pilot of an aeroplane would therefore be prompted to change course. Regardless of that, however, the court considers that this scenario is impossible simply because a Buk missile cannot be fired if the calculated interception point is not within range.

Moreover, the functioning of the echoes excludes the possibility that the on-board receiver on the Buk missile could have picked up the signal of the MH17 in flight. After all, the radar of the Buk TELAR would have constantly transmitted signals at an angle of ten degrees, to the east, towards the Air India aircraft, the alleged original target. Therefore, these signals could not possibly have been reflected back by MH17, which was approaching from a completely different direction, and would have been picked up as an echo by the Buk missile’s on-board receiver. Moreover, it is unclear why the missile in the American agency’s scenario did not simply pick up Air India’s echo; if it had not been picked up, for whatever reason, then the missile would have destroyed itself within seconds and would not have been able to lock on to MH17.

The court concludes from the statements made by expert witnesses RC02 and G9081 that a ‘lock-on, lock-over’ can only occur in the event of high levels of traffic in the radar zone and another aeroplane flying in that zone at the same speed and azimuth and at a slightly higher altitude (a few hundred metres at most) than the pre-programmed object, so that the Buk missile’s on-board receiver might mistake that new object for the original one. Not only was MH17 flying nowhere near the radar angle as described above, it was also approaching from the opposite direction and was flying at an altitude three kilometres lower than the Air India aeroplane. Therefore, it would have been impossible for the Buk missile to have mistaken MH17 for its original pre-programmed target, assuming it could have been fired at all and could have detected a signal from MH17.

The court further doubts whether a Buk missile – launched in an easterly direction – possesses sufficient manoeuvrability that it would be capable, in flight, of completing the U-turn that would have been necessary to strike MH17. However, in view of all the above, the court considers it unnecessary to investigate this possibility.

On balance, the court cannot help but conclude that the authors of the American report who presented this implausible scenario as likely have succumbed to a form of reasoning towards a foregone conclusion. This seems to be in line with the aforementioned repetition of the reference data and findings of Almaz-Antey, without criticism, in the reports on the weapon used and the launch area and, in the opinion of the court, this gravely detracts from the credibility and thus the cogency of the reports issued by this agency.

In view of the aforementioned lack of credibility and cogency, the court deems it irrelevant and therefore unnecessary to interview the authors of the report attached to the American agency or to put further questions to them in writing, and therefore rejects this conditional request by counsel for defendant Pulatov.

6.2.4

Actual conduct and interpretation thereof

6.2.4.1 Introduction

The court has previously found proven legally and conclusively that flight MH17 was shot down on 17 July 2014 by a Buk missile fired from a Buk TELAR positioned in a farm field near Pervomaiskyi, and that flight MH17 crashed as a consequence, resulting in the death of the 298 occupants of the aeroplane.

Furthermore, it has already been established in the context of jurisdiction that in the opinion of the court there was at that time an internationalised and international armed conflict between Ukraine and the DPR, which was under the ‘overall control’ of the Russian Federation. This conflict was taking place in the Donetsk and Luhansk oblasts. Below, the court will address this situation first and in particular that in the Donetsk oblast. After all, the Buk missile was fired at flight MH17 from that oblast. Regarding the question of who is responsible for firing that missile with all the ensuing consequences, the circumstances under which it happened need to be described. In those circumstances certain choices were made that led the Buk missile to be fired at flight MH17. These choices are described, because they are relevant for assessing the conduct of the accused. The next matter to be addressed is which conduct on the part of the accused and others is relevant in that context in relation to the charges.

6.2.4.2 Situation in eastern Ukraine in July 2014 ^[165]

From around April 2014, in the context of the ATO, the Ukrainian military fought the separatists who were seeking greater independence in eastern Ukraine. On 11 May 2014, separatists in the Donetsk and Luhansk oblasts declared independence following referendums that were not recognised by Ukraine. In doing so, the DPR and the LPR became a reality in their eyes. Both republics appointed leaders and formed governments and introduced their own constitutions. Fighting between Ukraine and the separatists subsequently intensified, including a large-scale offensive by Ukrainian armed forces in northeastern and southeastern Ukraine from 19 June 2014 onwards. Reports of those battles mention that both sides used increasingly heavy weapons. Several Ukrainian military fighter and transport aircraft and helicopters were shot down in the process as well. Due in part to international pressure, Ukraine declared a unilateral ceasefire on 20 June 2014, ushering in a period of relative calm in eastern Ukraine. On 30 June 2014, the ceasefire ended.

After the ceasefire ended, Ukraine resumed the ATO on 1 July 2014. This resulted in fighting on two fronts: in northeastern and southeastern Ukraine. In the northeast, in and around the cities of Sloviansk, Kostiantynivka, and Kramatorsk, the Ukrainian army advanced. In the first half of July 2014, the separatists were driven out of the Sloviansk area southwards, in the direction of the city of Donetsk. ^[166]

In the southeast, near the town of Snizhne, the Ukrainian army tried to retake the strategically important Savur-Mohyla hill from the separatists and to prevent the separatists from opening and keeping open a corridor from Snizhne into Russian territory. This was far more difficult than in the northeast, however, and from early July 2014 it led to protracted heavy fighting in the area of Savur-Mohyla and Snizhne, which was still ongoing on 15, 16 and 17 July 2014. This is also the area where Pervomaiskyi is located and from where flight MH17 was shot down on 17 July 2014.

The southeast / Snizhne and Savur-Mohyla area; specific need for air defence

The separatists maintained their positions relatively well at Savur-Mohyla and Snizhne and the surrounding area until mid-July 2014. Heavy fighting did occur, however, in the area of Savur-Mohyla and around the villages of Dmytrivka, Marynivka, and Stepanivka, south of Snizhne. ^[167] Around 15 July 2014, the separatists launched an offensive from Snizhne with the objective of opening up a corridor towards the south, heading to the Russian border. On 15 July 2014, Stepanivka was taken by the separatists. One day later, on 16 July 2014, the separatists launched an offensive in the direction of Marynivka, and there was heavy fighting around Tarany. As a consequence of this fighting, on 16 July 2014, the villages of Tarany, Marynivka and three elevations south of Stepanivka and Marynivka fell to the separatists. On 17 July 2014, these battles continued.

So although the separatists were able to maintain their positions and expand slightly, they suffered increasing losses due to continuous Ukrainian aerial bombing. This also made it increasingly difficult for them to maintain the corridor achieved with great difficulty from Snizhne toward the Ukrainian-Russian border. Although the separatists had shot down several (low-flying) Ukrainian helicopters and aircraft since June 2014, Ukrainian aerial superiority was great, perhaps too great. The separatists found it almost impossible to provide a military response to those air strikes, as they lacked their own air force and equipment to attack the airborne equipment of the Ukrainian armed forces. The separatists had only one Strela-10 (with an altitude range of 3,400 metres), one ZU (ZUshka)-23 (with an altitude range of 2,500 metres), and Manpads (shoulder-fired missiles with an altitude range depending on the type of up to about 3,500 metres).

6.2.4.3 Role and position in the DPR of the accused and their telephone numbers

The activities of the four accused in this criminal case are specifically addressed below. This is based largely on the content of recorded and intercepted telephone conversations and relates closely to their position and role in the indicted period. Accordingly, the court will describe first what roles and positions the four accused held during that period, and which telephone numbers have been attributed to them.

The accused Girkin is a Russian citizen and used the call sign
, alias Igor Strelkov (in telephone conversations); he was further referred to as Perviy/Pervyi (’the first’), Strelok, Igor Ivanovich, and comrade Colonel. ^[168] Based on voice recognition, as well as on mentions of his name, and because he himself acknowledges having made certain telephone calls, the court finds that Girkin could be reached on the telephone numbers ending in -1558, -8454 and -7501 and may therefore be considered a regular user of those numbers. ^[169] Girkin served in the Russian armed forces in several wars. He then continued his career with the FSB (Russia's Federal Security Service), until he retired in March 2013. He then worked as head of security for a private company, until he went to Crimea around 20 February 2014. Girkin was a security consultant there to Sergey Aksenov, the head of government of the Republic of Crimea (proclaimed shortly thereafter). He did this until early April 2014. ^[170] Girkin has mentioned that at Aksenov's request, ^[171] but entirely at his own initiative and of his own free will, ^[172] he went to the city of Sloviansk in eastern Ukraine in the night of 12-13 April 2014, with a group of volunteers he had gathered from local insurgents. ^[173] In late April 2014, Girkin was introduced as Commander of the Donbas People's Militia, ^[174] which is the assembly of armed units in the Donetsk region, the DPR, which then came under Girkin's command. On 16 May 2014, Girkin was presented as Defence Minister and Supreme Commander of the People's Army of the DPR. In that position, he was responsible for coordinating the activities and directing combat operations of People's Army troops and assembling the staff and apparatus of the DPR Ministry of Defence. Girkin held that position until 12 August 2014 and left for the Russian Federation on 15 August 2014. ^[175]

The accused Dubinskiy is a Russian national. ^[176] Based on voice recognition combined with information from the internet, and on a witness statement, ^[177] the court considers the accused Dubinskiy to be the user of the telephone numbers ending in -3401 and -1582. Conversations that Dubinskiy conducted via those telephone numbers have revealed that he also calls himself Khmuryi, (Sergey) Nikolayevich, Colonel Petrovskiy, commander of the DPR Intelligence Service, and Deputy Minister of Defence. ^[178] In 2014, Dubinskiy was Head of the DPR intelligence service and DPR Deputy Defence Minister, i.e. Girkin's deputy. ^[179] Based on interviews, it may be inferred that Dubinskiy served in the Soviet and Russian military for 30 years, retired in April 2014 and became a reservist. Subsequently, following contact over the telephone with Girkin, Dubinsky went to Sloviansk, where he became the DPR deputy military commander. He set up an intelligence and reconnaissance service and reported to Girkin. In January 2015, Dubinskiy left the Donbas to return to Russia, coming back to the Donbas shortly thereafter. ^[180]

Defendant Pulatov, also a Russian national, ^[181] has mentioned that in 2014 he was involved in the armed conflict on DPR territory in Ukraine, and that one of his call signs was Giurza. ^[182] That call sign is also used in the telephone numbers ending in -2511 and -2177, and in part because of the combination of that call sign with the names Oleg and Yuldashevich in calls placed via those numbers, voice comparison, and information on the internet, it may be determined that defendant Pulatov used those numbers up until and including the summer of 2014. ^[183] In his video statement, Pulatov has also confirmed that he used multiple telephone numbers, including a number ending in -511. ^[184] Commenting on several calls to that telephone number, he has said that he used the number ending in -2511 in the DPR in 2014 and could always be reached on that number. ^[185] The court considers that the conclusion drawn by the NFI having examined the conversations also confirms that twelve conversations, used as evidence hereafter, were conducted via that number by Pulatov. Indeed, the NFI found that the probability of the results of its analysis being observed was ten to one hundred times greater in the case of the one-speaker hypothesis, than in the multiple-speaker hypothesis. ^[186] Furthermore, at the instruction of the court, forensic experts in Lithuania checked the authenticity of the audio files of these telephone conversations. Those experts concluded, based on examining those intercepted conversations in various ways, that no traces of editing had been identified in the audio recordings reviewed. This is additional confirmation of the accuracy of the authenticity check on the intercepted conversations referred to earlier in this judgment.

Defendant Pulatov has also mentioned that he is a specialist in tactical military intelligence, pursued advanced military training, and was a soldier in the Soviet and Russian armed forces until August 2008. He retired on 30 July 2008. After the events in Odessa, he left Kyiv for eastern Ukraine on 12 April 2014 as a retiree and joined the DPR people's militia there. ^[187] As of May 2014, he received his orders from only two people, to whom he reported as well: militia commander Girkin and head of the intelligence unit Dubinskiy. ^[188] Pulatov further stated that in the intelligence unit he was tasked with providing armed and logistic support, and that in the period from 16 to 18 July 2014, he and units under his command conducted reconnaissance in the Stepanivka and Marynivka area, south of Snizhne. He also set up security on site following the crash of flight MH17. Pulatov has said that in the afternoon of 17 July 2014, he was involved mainly in positioning newly received tanks and with communication between those tanks and the units. ^[189]

Accused Kharchenko, a Ukrainian national, ^[190] goes by the names and aliases Krot, Leonid and Lionia, as becomes apparent from combining data available on Kharchenko from his criminal record, the mortgage registry and an information report from the Ukrainian SBU, together with telephone calls recorded from the telephone numbers ending in -7518 and -5197. ^[191] In those calls, the person placing the call uses these names and states them when providing his personal information. In addition, voice recognition has been carried out. ^[192] The court therefore identifies the accused Kharchenko as user of those telephone numbers. In conversations via those telephone numbers, accused Kharchenko indicates that he is the military commander of Kostiantynivka, of the Separate Reconnaissance Battalion of Khmury's unit. ^[193] Confirmation that Kharchenko held that role and position appears in an interview published on 11 April 2015, in which the person interviewed states that his first combat mission was in May in the DPR Intelligence Unit set up by Dubinskiy on 20 May (in each case the court understands: 2014) established Intelligence Unit of the DPR. ^[194] The person interviewed introduces himself as Leonid Vladimirovich Kharchenko. According to the reporting officer, he resembles the man in the photo from Kharchenko's criminal record, and, according to a reporting officer proficient in Russian, ^[195] his voice also sounds similar to that of the user of the telephone number ending in -7518. ^[196] On 5 July 2014, the separatists were driven out of Sloviansk, Kramatorsk and Kostiantynivka and headed to Donetsk. An intercepted conversation from 6 July 2014 between Dubinskiy and Kharchenko indicates that Kharchenko was placed under Dubinskiy's command at that point. ^[197] The accused Kharchenko also mentions in the aforementioned interview that he fought with his men in many places, including Dmytrivka and Marynivka. ^[198]

Based on the above considerations, viewed together and in relation to each other, the court is of the opinion not only that the accused used the aforementioned telephone numbers attributed to them in each case, but also that they took part in the calls conducted via those telephone numbers, unless indicated otherwise. In addition, the court notes that all intercepted conversations used as evidence that the court attributes to the accused took place via the telephone numbers listed above.

6.2.4.4 Actual conduct of the accused in the period 8 June 2014 to 18

July 2014

Introduction

The intercepted conversations are essential in determining exactly what the accused did in the period around the launching of the Buk missile and the crash of flight MH17. Below, the court will interpret the said intercepted conversations by evaluating the content of the intercepted conversations themselves and the evidence already presented above, in combination with other evidence and against the background of the armed conflict. The said other evidence includes mainly visual material (photographs and videos) and transmission mast data. It also includes the so-called historical telecom traffic from which communication with telephones present in the vicinity of specific locations can be derived. For the sake of the readability of this judgment, the court has therefore included the intercepted conversations used in evidence, in paraphrased form, combined chronologically with visual material, in an appendix to this judgment (Appendix 3). The said appendix is part of this judgment and also contains the source of the original, not paraphrased intercepted conversations. On the basis of this material, the actual actions of the call participants are interpreted. Conclusions will then be drawn on that basis, about the role of the accused in relation to the charges.

Listing and naming of (other) call participants

The intercepted conversations are not only between the accused, but also between other individuals. The court notes that many of those other individuals have also been identified. Separate official records of findings have been prepared on each occasion, explaining on the basis of which information and which findings a telephone number is linked to a specific individual. In that connection, the court considers that their identification was convincingly made in part on the basis of intercepted conversations attributed to them and, vice versa, by establishing that they are the user of the telephone numbers used to make the calls in question. Because these other individuals are ‘merely’ the counter-callers for the four accused, or the conversations between them contribute only indirectly to the evidence concerning the role and actual conduct of the accused, for the sake of brevity regarding them, the court will simply refer to the official records compiled with a view to identification in the footnotes. The court also assumes the - otherwise undisputed - authenticity of these intercepted conversations, i.e., those in which none of the accused participated, based on the methods for analysing reliability and authenticity already referred to in this judgment.

The names of the other call participants and their call signs, as well as their sources in the case file, are included in Appendix 2 to this judgment, which forms an integral part of this judgment, for reasons of readability and protection. The court has also specified their place and position in the DPR and/or relative to the four accused in the period briefly preceding and on 17 July 2014. ^[199]

In as much as the accused are referred to by their aliases in the intercepted conversations, the court has included their real names in rendering the intercepted conversations for the sake of readability. Other call participants are referred to by their call sign and persons whose identities remained unknown in the investigation are referred to in the intercepted conversations as person unknown, possibly followed by their call sign. However, this does not apply to public persons who are already easily identifiable for that reason. Because the conversations are conducted with the accused, all ‘members’ of the DPR, and/or the conversations refer mostly to hostilities, the court assumes that they too belonged to the DPR, whether or not as fighters or in some other position, including of authority.

Other topics in the intercepted conversations

The case file contains numerous intercepted telephone conversations conducted between many different individuals over a longer period of time prior to and also after the crash of MH17. Given the indictment, this judgment focuses on the flight MH17 disaster and therefore contains parts of the case file that relate to that event. However, the court considers it important here to point out that the MH17 disaster took place in the context of an armed conflict. That conflict meant that in that period there were more matters relevant to that conflict that demanded the attention of individuals involved. This is reflected in the intercepted conversations. These intercepted conversations were gathered after the fact, i.e. after the fate of MH17 became known, and examined for relevance to the criminal investigation into the MH17 crash. This means that, with the knowledge of today, certain intercepted conversations are of less or no relevance to these criminal proceedings. They are, however, indicative of what the separatists were doing in their daily activities in the context of the armed conflict. It thus follows from the intercepted conversations that there were many contacts between DPR fighters and LPR fighters, that those fighters knew each other, and that they also did each other favours in each other’s conflict. It also follows from the intercepted conversations that the LPR was also in the process of obtaining Buk installations, that they had in fact succeeded in doing so around 17 July 2014, but that problems had arisen with the delivered Buk. However, those attempts are separate from the efforts regarding the Buk at issue in these criminal proceedings. The case file further contains numerous intercepted conversations about and incidents involving threats and/or death threats towards Bezler, against which he wished to take action, and around 17 July 2014, there is much talk of DPR fighters threatening to attack other DPR fighters, with mediation by persons (also) associated with the flight MH17 disaster. Finally, there are intercepted conversations referring to deliveries of urgently needed goods between individuals from the Donbas and from the Russian Federation, whose identity has remained unknown. The court refers to these other subjects of conversation from the intercepted conversations because these too explain why the crash of flight MH17 did not receive the permanent and full attention of the separatists. After all, they also had to wage their conflict with the Ukrainian army, even after flight MH17 had crashed.

Explanation of wording

Not all matters are discussed openly in the intercepted conversations; the separatists knew their conversations were being intercepted by the Ukrainian authorities. This was also asserted by defendant Pulatov. At various points, the intercepted conversations contain words that are evidently aimed to obfuscate and therefore require further interpretation. The court provides this interpretation in the section below entitled ‘Interpretation of intercepted conversations and visual material in the context of the other evidence’. In general, it became clear to the court that terms such as "box," "toy" and "damaged tank" refer to a Buk TELAR, and that "rhinos", "heavy ones", "iron things" and "spitters" refer to tanks and other forms of ground artillery. The meaning of words such as "there" and "here" can usually be deduced from the context of the conversation and, assuming that the intercepted conversations were conducted by DPR fighters and supporters, "we" refers to DPR fighters, and "they" usually refers to the Ukrainian armed forces they regard as enemies. Other terms in the intercepted conversations have been similarly interpreted by the court and incorporated into the following.

Interpretation of intercepted conversations and visual material in the context of the other evidence

The intercepted conversations and visual material, viewed in the context of the aforementioned evidence, lead the court to conclude that after a period of ceasefire, fighting between the separatists and the Ukrainian army resumed in late June - early July 2014, and that the separatists were suffering from the bombing and shelling by the Ukrainian army. On 8 June 2014, by which time he had been active in eastern Ukraine, operating from Sloviansk, for about eight weeks, Girkin reports this fact in a conversation with Aksenov, the Prime Minister of the Republic of Crimea who requested Girkin become actively involved in the conflict in eastern Ukraine. Girkin mentions to Aksenov the need for military support from the Russian side, in order to achieve success in the conflict against Ukraine. This includes air defence weapons, including systems with a longer range than Manpads. Girkin wants the desired military equipment to be supplied accompanied by trained crew, because the DPR has no time for training. Aksenov is working on the request, and assistance and coordination from Russia appear to be forthcoming. On 5 July 2014, together with his troops, Girkin withdraws from Sloviansk and relocates to Donetsk, where he sets up his headquarters. Dubinskiy and Kharchenko also establish headquarters in Donetsk.

At those headquarters, on 6 July 2014, in the presence of Pulatov, Dubinskiy instructs that a corridor be created, a passage, between Snizhne and the Russian border to the south of Snizhne. Dubinskiy also points out the area on the map. In connection with the instruction, Pulatov has to depart for Snizhne that same evening, with person unknown Piton and a group of his troops, to travel onwards from there to Dmytrivka. Once there, they must conduct additional advance reconnaissance of four areas of high ground there. On 7 July 2014, Pulatov and person unknown Piton return to Dubinskiy to report on their findings.

On 15 July 2014, Girkin is working from Donetsk to organise equipment for the conflict in and around Snizhne and in that connection is consulting with and issuing commands to his logistics unit. These consultations also refer to a large item of weaponry that has to be collected from the border with the Russian Federation. In the afternoon, Dubinskiy is instructed to come to Girkin for new instructions. Dubinskiy passes that instruction to Pulatov and Kharchenko, who subsequently gather equipment and troops, who set off for Snizhne in the evening in full combat gear and fully refuelled. The mission includes tanks. Pulatov is coordinator of this mission and of all armed forces dispatched to and still to be transported to the Snizhne area. Kharchenko consults with Pulatov on the status of the transport operation, commands his own men and attempts to solve logistical problems in consultation with Dubinskiy. Girkin receives a call from Kharchenko when not everyone offers full cooperation in carrying out Girkin’s instructions. Around midnight, Kharchenko reports to Pulatov that he has reached Snizhne, with his convoy. Pulatov says that further plans will be drawn up and orders given in Snizhne. Clearly, this all relates to the corridor and keeping it open.

Girkin is kept abreast of the status of the corridor, as demonstrated when on 16 July 2014, within hours of arriving in Snizhne with his military convoy that night, Kharchenko reports to Girkin, at Pulatov's behest, that Pulatov has driven the tanks to their location. Later that morning, Girkin also pays an inspection visit himself, together with his boss and political superior Borodai. He tells the media present about the status of the fighting taking place there against the Ukrainian army: the Ukrainian army has launched an attack on Marynivka, but the separatists were able to prevent the Ukrainian troops from reaching each other. Girkin also reports that three areas of high ground and a village have been occupied by the DPR fighters, but that they are unable to reach the border with the Russian Federation because the Ukrainians are too strong there.

It is also clear from the intercepted conversations that the fighting is arduous; enemy positions cannot be broken through, and the Ukrainians are carrying out air strikes with Sushkas, and continuous artillery fire by the Ukrainians has led to many deaths and injuries on the side of the DPR. Dubinskiy, Pulatov and Kharchenko refer to these events in their conversations during the course of the day, in which Dubinskiy is kept abreast by Pulatov and Kharchenko of the development of the fighting, and the losses of men and equipment. Kharchenko and Pulatov also keep each other informed of losses and of their own strategic positions and those of other DPR fighters in the area with whom they are in contact. Pulatov issues orders to Kharchenko and other DPR fighters. Girkin is kept informed by Dubinskiy of the status of the fighting, and in consultation with Girkin, Dubinskiy also issues the necessary strategic orders from Donetsk. Despite heavy losses Kharchenko is suffering due to artillery fire, Pulatov instructs Kharchenko that he must maintain his position, but following consultation with Girkin, Dubinskiy will send troops under Cap and Tor to relieve and reinforce Kharchenko; Kharchenko and Pulatov can then come to Donetsk. Girkin then also actually orders Cap to go to Stepanivka and Marynivka. In the conflict against Ukrainian artillery, which is causing so much trouble to the DPR fighters, Dubinskiy has marked on the map where the Ukrainian artillery is located, and instructs Girkin to pass on that information to Moscow so that Russia can carry out bombardments. Girkin also takes decisions about the relocation and withdrawal of units. Dubinskiy is the person who consults on these matters with Girkin.

The DPR fighters can do nothing against the Sushkas: although two Sushkas are downed by them that day with their Manpads, for the most part the Sushkas fly too high to strike them with the means available to the DPR. Especially because the Strela is also broken. The Strela is due to be removed for repair in the coming night (the night of 16-17 July 2014), Pulatov reports to Dubinskiy. For that reason, Pulatov has no need for tanks, but for decent anti-aircraft defence, he informs Dubinskiy. Dubinskiy then expresses the wish to DPR fighter Sanych to receive a Buk, which he could then send to the corridor that morning, otherwise the prospects do not look good. Dubinskiy tells Pulatov that if he receives delivery of a Buk M that night, then it will be sent directly to Pulatov and that the said Buk M is their only hope. In light of the difficult course of the conflict, caused by heavy artillery fire and air strikes, and Dubinskiy's and Pulatov's complaints about the situation, the wish to have a Buk M must be seen as an expression of the desire to have access to a larger and more powerful weapon in order to be able to defend themselves against the constant Ukrainian (air) attacks. A Buk M would be very suitable for that purpose.

In the meantime, Dubinskiy is also communicating with his logistics man Bibliothekar: in the afternoon, Dubinskiy asks him if he will be leaving today; Bibliothekar is still waiting for a phone call. When he goes, he can take the car Dubinskiy was using yesterday, and pick up another one from Kharchenko. Later that evening, Bibliothekar is at Kharchenko's headquarters and asks Dubinskiy which car he can take. Dubinskiy is nearby, because he drops in to see Bibliothekar.

The morning of 17 July 2014 starts shortly after midnight with the warning from Girkin to his commander in Snizhne, Cap, that they need to reinforce their positions because Ukraine is going to shell them heavily. A short time later that night, after Dubinskiy informs the commander of the Vostok battalion that he has suffered many deaths from Sushkas deployed from an altitude of five kilometres, but that his problems are solved because a Buk is due to arrive that night, Vostok tanks and men are offered to him for the priority task of keeping the corridor open. Girkin orders Dubinskiy to accept that offer and in the morning issues the order to reposition the Vostok tanks. Dubinskiy carries out that order later that morning, and also requests that ten men and three tanks be sent to the corridor, to Cap and Tor in Stepanivka and Marynivka because of the difficult situation there. At around seven o'clock that morning, Pulatov is very angry with Kharchenko because he does not understand how orders are given: Pulatov received one order and then Kharchenko received another order, that by-passes Pulatov, while he, Pulatov, had been placed in charge. Following a telephone call from Tor, Girkin reports to Borodai that they have been defeated on high ground, with just three survivors out of thirty men. Borodai thinks that’s ‘fucking shit
’ and Girkin wants Borodai to come to Donetsk.

Then around nine o’clock in the morning, a single Buk M is delivered to Donetsk by Bibliothekar, on a trailer. The Buk comes from the Russian Federation and, on Dubinskiy's orders, travels directly to Pulatov in the corridor, where it will solve the problems of bombardment by high-flying Sushkas. Kharchenko receives the instruction from Dubinskiy to escort the Buk, to position it in the vicinity of Pervomaiske and to guard it there with his men. Dubinskiy says that Pulatov will also travel there. Immediately thereafter, Pulatov is informed by Dubinskiy that Kharchenko is on his way to him with a Buk M and that three tanks for Cap will also be arriving. Dubinskiy orders Pulatov to wait for Kharchenko, and then travel with him and all his men to the vicinity of Pervomaiske and position the Buk there, and guard it. Pulatov is tasked by Dubinskiy with organising everything relating to the tanks and the Buk. Pulatov will do that, but he will also keep the corridor clear. He had already heard about the arrival of the tanks, from Girkin. Initially, Dubinskiy arranges with everyone else involved for the Buk to travel in a convoy which also includes the three tanks and crew offered by Vostok, but because it takes too long for the Buk and the tanks to meet up at the agreed location near the Motel roundabout on the direct road from Donetsk to Snizhne, the tanks already leave, escorted by Sanych and Dushman. Kharchenko follows a little later with the Buk convoy. Dubinskiy agrees all this by telephone with Bibliothekar, Kharchenko and Sanych who are involved in the transport operations, and with Pulatov who is in the corridor. In that contact, Pulatov requests Dubinskiy to have the Russian Federation bomb the Ukrainians who have sneaked out of Hryhorivka. Even before Kharchenko arrives in Snizhne, where he meets Pulatov, he orders his own men to travel to Pervomaiske.

Girkin had been in contact with Tor that morning. Tor brought Girkin up to date on the numbers of dead, wounded and broken down tanks, and was informed by Girkin that Pulatov is in charge, until he hands over command to Cap. Girkin passes on several more orders for Tor, explaining that tanks are on their way for Tor and that he has given Pulatov orders to deploy the available means. It is noteworthy that Girkin does not mention a Buk TELAR, even in veiled terms.

The convoy of the Buk TELAR is not only discussed in intercepted conversations, but can also be seen on visual material that thus supports the content of the intercepted conversations. On that visual material, in a logical time sequence and order of sites captured on the images, a Volvo is shown, with a trailer on which is a Buk TELAR with white-headed missiles under camouflage netting. This convoy moves from a junction on Illicha Avenue in Donetsk, via the Motel roundabout on the Makiivka Highway, past the Avtotransportna to Makiivka and then on to Zuhres and Torez, in the direction of Snizhne. There is also visual material of the convoy travelling separately, via (approximately) the same route, containing three tanks from Vostok. ^[200] The content of the intercepted conversations is also supported by the historical data referred to earlier in this judgment from telephones along the inbound, arrival, transit, arrival and outbound route of the Buk TELAR.

At around quarter to one that afternoon, Kharchenko arrives at the Furshet in Snizhne, with his convoy including the Buk TELAR on a trailer. Just before that, he calls Pulatov to tell him he is almost there; Pulatov is also on his way to the Furshet. At the Furshet, Kharchenko meets Pulatov. A short time later, a photograph and a video show the Buk TELAR driving independently through Snizhne, on Gagarina Street, towards Pervomaiske/Pervomaiskyi. Also on this road is the farm field which the court considers legally and conclusively proven to be the site from which the Buk missile which downed the MH17 was launched.

While the Buk TELAR is
en route from the Furshet to Pervomaiskyi, Pulatov makes three unsuccessful attempts to call a telephone number ending in -6335. In the court's opinion, it is sufficiently established that this is the number of a crew member of the Buk TELAR. This follows from the fact that at the moment Pulatov calls this number, the called telephone communicates with a transmission mast on Gagarina Street in Snizhne, and at that precise moment, according to intercepted conversations and the aforementioned video footage, a Buk TELAR is driving under its own power along Gagarina Street in Snizhne towards Pervomaiskyi. This fact, in combination with the fact that historical telecom traffic of that evening shows that - after Kharchenko has requested him to contact the crew of the Buk TELAR because a crew member has been left behind at the launch site - Pulatov made four calls to this number within ten minutes or so, ^[201] convincingly demonstrates in the opinion of the court that this must have been the number on which a crew member of the Buk TELAR could be reached. All the more so since this number was only in use on 17 July 2014.

Also around that time, Kharchenko calls Zmey, who is instructed by Kharchenko to place the Buk TELAR in the bushes further into the field there and to guard it until Kharchenko returns with Ryazan. He will pick up Ryazan at the Furshet in Snizhne.

That afternoon, when Girkin is briefed by Tor on the current battle positions of himself and Cap and on the losses suffered, and Girkin uses that opportunity to issue more orders to Tor, Tor also tells him that he has just seen Pulatov passing by with three Vostok tanks. When Dushman tells another DPR fighter that the Ukrainians were bombing yesterday from above four thousand metres, so they could not be downed by Manpads and that they will now be firing at Ukrainian fighter jets with Buk missiles, flight MH17 had crashed just two minutes previously. Fifteen minutes after the crash, two unknown persons talk about men from Snizhne having shot down an aeroplane fifteen minutes previously (court: therefore at 16:20) which crashed near Hrabove. They can only be referring to flight MH17. However, at around ten to five, Kharchenko reports to Dubinskiy that they have shot down a Sushka, from Pervomaiske. Dubinskiy instructs Kharchenko's men to continue to protect and guard the Buk TELAR, and then Kharchenko and Pulatov may come to Donetsk. Kharchenko next reports to Dubinskiy that the Buk is out of range of artillery fire. At around quarter to six that afternoon, a DPR fighter reports to Dubinskiy that he is on his way to remove the black boxes from an aeroplane that had been shot down and that if necessary, he will give the boxes to Dubinskiy. Dubinskiy tells him that his men have also just downed a Sushka above Savur-Mohyla and are now looking for the black boxes. He says the Buk M they received this morning makes a real difference. Here Dubinskiy very explicitly links the shooting down of an aeroplane to the Buk M the DPR received that morning. What is clear is that, at that moment, he appears not yet to have made the connection between flight MH17 downed shortly before and the aeroplane shot down by his men with their Buk M.

From the intercepted conversations in the late afternoon and early evening following the crash of MH17, it becomes even clearer that the deployment of the Buk TELAR was successful; an aeroplane was brought down. However, it follows from the conversations that it takes some time before Girkin and Dubinskiy learn that it is a passenger aeroplane that has crashed. Only two hours after MH17 crashed does an individual whose identity remains unknown tell Dubinskiy about a crashed Boeing, but Dubinskiy says he knows nothing about it. At around that same time, Girkin is informed by a DPR fighter that the downed aeroplane is allegedly a Boeing. Very shortly thereafter, the account emerges in the intercepted conversations that the MH17 was allegedly hit by a Sushka. When at around quarter to eight Kharchenko tells Pulatov that the DPR's Buk TELAR has been moved, Pulatov relays the account that his men saw how MH17 was shot down by a Sushka and that immediately afterwards, the DPR shot down the said Sushka with the Buk TELAR. Kharchenko is told to pass this on to Girkin. This same account is also told by Pulatov to Koreets and later in the evening also to Dubinskiy, who immediately passes it on to Girkin. However, Girkin appears not to believe the account, and tells Dubinskiy that he must settle it neatly. Dubinskiy also apparently doubts the account, because he then asks Kharchenko whether it was not in fact the DPR men who shot down MH17. Kharchenko then repeats that it was the Sushka that did it, and that the said Sushka was then downed by the DPR's Buk. In the meantime, however, other DPR fighters had told each other by telephone that Girkin’s fighters had shot down a passenger aeroplane with a Buk, but that it was accidental. It can be concluded from the conversations of DPR fighters that it was not the Ukrainians who shot down the aeroplane, as the Russian media would like us to believe.

As already indicated above, immediately following the crash of MH17, attention was focused on securing the Buk TELAR, but that changes after several hours, and orders are given to remove the Buk TELAR. All these conversations take place after the conversations about which aeroplane was shot down by the Buk TELAR of the DPR fighters. As he is too busy because of the crash of MH17, at half past eight, Girkin instructs Dubinskiy to evacuate the Buk TELAR and to remove it to the border between the DPR and the LPR, where it will be picked up. The court deduces from this that before issuing this instruction, Girkin must have been in contact with the LPR, which is shown to be the case later that evening. Dubinskiy immediately makes a start on carrying out this instruction and notifies Kharchenko that the Buk TELAR must be taken to the regional border and that a trailer will be provided for that purpose. When Kharchenko sets to work and wishes to pick up the Buk TELAR at the checkpoint, he hears from his subordinate that the Buk TELAR has already left for Snizhne under its own power. A short time later, it emerges that one of the crew members has been left behind at the checkpoint. Kharchenko instructs his subordinate to take the crew member to the Furshet and asks Pulatov to seek contact on this matter with the other crew members of the Buk TELAR. However, these attempts are unsuccessful. It follows from the further intercepted conversations that evening that Dubinskiy directs Kharchenko in carrying out the instruction to remove the Buk TELAR, but seeks to consult with Girkin when things do not go as planned. Girkin also asks Dubinskiy about the state of affairs regarding the removal operation. When a little after 11 o’clock in the evening, the Buk TELAR is ready to be actually removed, Dubinskiy says that Kharchenko can leave it to his men. He does inform Kharchenko where the Buk TELAR will be taken over by men from Luhansk. Leshy, the convoy escort, must contact the men from Luhansk on this matter, and Dubinskiy himself is provided with Leshy's telephone number. The LPR Minister of Defence at the same time issues the instruction to meet the Buk convoy, to take it over and escort it to the Russian border near Severniy, where it will be met. By then it is almost midnight.

During the night and early morning of 18 July 2014, there is much telephone traffic about the removal of the Buk TELAR. The calls take place between the persons responsible for the removal, men of the DPR and the LPR, who are in contact with each other, and also with the two crew members present, but also at the level of the Ministers of Defence of the DPR and the LPR. In that process, a misunderstanding arises about the escorting of the Buk TELAR from the border between the DPR and the LPR, up to the agreed end point: the border with the Russian Federation at Severniy. Girkin becomes very angry at Dubinskiy, and instructs him to sort it out. Dubinskiy attempts to get this done via Kharchenko. However, the misunderstanding is not solved overnight, as the telephones prove unreachable. In the early morning it becomes clear that, under the escort of Bibliothekar, the Buk TELAR has been taken to the Russian border and has arrived there. Only when that becomes clear are Dubinskiy and Girkin at ease. At the end of the morning, Dubinskiy also announces that last night and tonight, his men have found two black boxes from MH17.

Position of defendant Pulatov regarding the presence of a Buk TELAR

In his video message dated 16 February 2020 ^[202] , defendant Pulatov first submitted that he was not aware of the presence of Buk missiles in the DPR on or around 17 July 2014, furthermore that he had not spoken to anyone about the matter on 16, 17 and 18 July 2014, and that there were no Buk systems at all in the area where his reconnaissance units were operating. Anyone with any understanding of military operations would immediately recognise that it would be idiotic, because there was nothing in that region worth protecting with a weapon like a Buk TELAR. In his explanation in the video recording of 22 October 2020, Pulatov repeated that there was no Buk present, and that intercepted conversations in which the word Buk is used were intended to mislead the enemy, or at least are open to multiple interpretations. ^[203] At oral argument, counsel for defendant Pulatov argued additionally that even if there was a Buk, it was not a working Buk but an out-of-order unit, the only purpose of which was to deter and that the explicit mention of a Buk in telephone conversations was also merely intended only to deter and mislead. It was then argued that if it were in fact a working Buk, it need not have been fired, but was only intended and used to deter the enemy, and finally, that if there was in fact a working Buk that was used, defendant Pulatov had no knowledge of it, let alone that he knew that the working Buk would be deployed and fired, and that he therefore had no part in it.

The court considers each of these assertions - over time, some partly, if not varying then at the very least not consistent - to be entirely implausible. The layered lines of defence that relate to these assertions, are therefore rejected. In this matter, the court considers that each of the assertions, if not intrinsically contradictory, is contradicted by the content of the evidence presented above, and thus is amply disproved by that evidence. After all, on the basis of ample evidence, the court has already determined that a Buk TELAR with missiles was present, that it was travelling in the direction of Pervomaiskyi, and that the said Buk TELAR did actually launch a Buk missile from a farm field in Pervomaiskyi, which missile downed MH17. In other words, there were no misleading phone conversations.

All that remains is the suggestion made by the defence that defendant Pulatov may not have been aware that there was an operational Buk TELAR that would actually be deployed and that he
thought that it was a matter of deception. The court sees so much evidence in the inconsistency of his statement itself, in combination with the content of the intercepted conversations, that this suggestion is far from the truth, that it rejects this line of defence.

When it comes to Pulatov's own statement that wherever reference is made to the presence of a Buk, this is an alleged attempt to deceive the enemy listening in, the court considers that the plausibility of this suggestion is undermined by inner contradictions. After all, if it truly were the case that no reasonable soldier would believe that a Buk TELAR would be delivered and would be deployed at that location in that conflict, why would an enemy listening in, who is also militarily trained, be impressed and consequently believe that there was indeed a Buk and not see through the deception? Therefore, according to Pulatov, this form of deception would be so transparent that the court does not understand why Pulatov would believe that the spreading of this kind of deception would have any chance of success.

Another indication that Pulatov knew very well that it was not a deception is that he himself saw the Buk TELAR at the Furshet. After all, Kharchenko had received the instruction to escort the Buk TELAR on that day. Dubinskiy had already informed Pulatov that Kharchenko would be bringing him a Buk M. It then follows from the intercepted conversations that Kharchenko and Pulatov did actually meet there, and that the Buk TELAR was also there. Under these circumstances, it is entirely implausible that he would not have seen the Buk TELAR there, especially since he attempted to contact the crew on several occasions by telephone, after the meeting at the Furshet.

Finally, the submission that Pulatov truly believed that the conversations about a Buk were mere deception cannot be reconciled with his reaction to the events after the fact. None of his conversations reveal any surprise about the presence of a Buk missile, which was also launched in the middle of ‘his’ operation corridor. On the contrary, he reports to his superior that his men in the field allegedly saw their Buk shoot down a Sushka: in other words, their Buk was fired and shot something down.

Superfluously, the court notes that it deduces from the intercepted conversation at 23:27 on 17 July 2014, contrary to defendant Pulatov's submission, that the Strela actually broke down on 16 July 2014, and that the said notification was also not misleading information. It is after all confirmed in that conversation, to the commander of the DPR anti-aircraft unit, that the Strela is under repair, which is in line with the notification by defendant Pulatov to accused Dubinskiy on 16 July 2014 that the broken Strela will be taken away for repair that night. There is no evidence that the DPR had more than one Strela on or around 17 July 2014, information provided, in fact, by defendant Pulatov. Whatever the case, with regard to these proceedings, the court considers it irrelevant whether or not the Strela was broken, and whether defendant Pulatov was holding or believed that he was holding misleading telephone conversations about a Strela. After all, it was not the Strela that downed MH17.

Conclusion regarding the actual conduct of the accused

The court concludes from the foregoing that in the night of 16 to 17 July 2014, DPR fighters delivered a Buk TELAR from the Russian Federation. The need for anti-aircraft artillery of this kind had long been felt, and following heavy fighting on 16 July 2014, whereby the DPR suffered heavy losses without being able to effectively defend itself, the system was more than welcome. The Buk TELAR that was delivered in the night and early morning was therefore sent on, immediately following its receipt in the morning of 17 July 2014, to the front line on the corridor between Snizhne and the border with the Russian Federation to the south of Snizhne, and in the afternoon of 17 July 2014 was deployed in the area occupied by the DPR near Pervomaiskyi in their fight against the Ukrainian army. As a consequence of that deployment, not a Sushka, but flight MH17 was downed and the 298 occupants of that flight were killed. After it became clear that this disaster had been caused by the deployment of the Buk TELAR, the said weapon was rapidly returned to the Russian Federation, in the expectation of preventing an international outcry.

The evidence shows that the actual arrival of the Buk TELAR was initiated by the accused Dubinskiy and that the transport of the Buk TELAR from the Russian Federation to and from the launch site was organised and supervised under his direct command, whereby he issued instructions to his subordinates and was kept up to date by them with respect to the progress of the transportation and the results of the deployment of the Buk TELAR. The accused Kharchenko, who for the most part actually provided and arranged the escort for the Buk TELAR, fulfilled a direct and active role. Kharchenko, for example, ensured that the Buk TELAR was escorted to the eventual launch site, and that it was guarded and protected there. He did this together with his men, to whom he also issued instructions and who were accountable to him. He kept defendant Pulatov informed of the status of the operation. Pulatov knew of the arrival and presence of the Buk TELAR. He had been informed of this by Dubinskiy and he met accused Kharchenko, who on the morning of 17 July 2014 was escorting the Buk TELAR, at the Furshet in Snizhne, where he must have seen the Buk TELAR. The Buk TELAR was deployed in the context of the fighting that took place on 17 July 2014 and on the preceding days, to the south of Snizhne in the area identified as the corridor. It was defendant Pulatov who, on the instruction of accused Dubinskiy to establish this corridor, had conducted advance reconnaissance, and who fulfilled a coordinating task in expanding and defending the corridor to the desired goal: a direct passage from DPR territory to the Russian Federation. On 17 July 2014, defendant Pulatov was hard at work in carrying out his responsibilities relating to the said corridor. Accused Girkin, finally, as Minister of Defence, was the military commander and leader of the DPR in the months leading up to, on and after 17 July 2014, and as such was responsible for the build up and deployment of the military arsenal and for the deployment of the DPR fighters. He gave direction and leadership to the conflict against the Ukrainian army, consulted on these matters with his commanders in the field, and issued them concrete strategic instructions, held discussions with his ‘colleagues’ from the LPR and with those responsible in Moscow, and also called in the assistance of Moscow. However, the evidence does not show that accused Girkin was aware of the arrival, presence and deployment of the Buk TELAR, prior to the crash of flight MH17.

In the conflict between the DPR and the Ukrainian army, accused Dubinskiy was therefore the commander in charge, accused Kharchenko an executive commander, defendant Pulatov an executive and local coordinating commander and accused Girkin bore overall military responsibility.

6.2.5

Legal interpretation of the actions of the accused

6.2.5.1 Introduction

In this judgment, the court has arrived at conclusions about the actions of the accused in the deployment of the Buk TELAR and its use for the firing of a Buk missile on 17 July 2014, from a farm field near Pervomaiskyi. In other words, what was their actual contribution to what happened? In the indictment, this contribution is characterised in different ways, with several variants of perpetration being charged: principally, functional perpetration or co-perpetration, and in the alternative, perpetration or co-perpetration, further in the alternative perpetration or co-perpetration of incitement and in the furthest alternative as perpetration or co-perpetration of complicity. On the basis of the evidence and findings of fact presented above with respect to the conduct of the accused Girkin, Dubinskiy, Pulatov and Kharchenko, the court must answer the question of whether any of the aforementioned perpetration variants listed in the indictment under the first and second count can be found proven. Given the compound (segmented) mode of indictment, the court will first assess the principal variant each time.

International law doctrine

In that regard, the court first of all considers that the prosecution takes the position that the accused were, together (and with others), part of a close-knit, collaborating group of perpetrators that repeatedly shot down aircraft and that, for that reason alone, each of the accused, as a member of this group, bears (functional) criminal responsibility for the downing of MH17, evidently irrespective of their concrete contribution to the downing of MH17 or their position in the hierarchy. As the prosecution did not charge the accused with participation in a criminal organisation, the prosecution appears to have based itself on elements of various forms of participation
(joint criminal enterprise (JCE)) and/or
direct/indirect (co)perpetration and/or
superior or command responsibility) developed in the jurisprudence of international tribunals for its interpretation of functional perpetration, all of which exhibit one or more characteristics of the Dutch doctrine of functional perpetration. However, the court considers that - quite apart from the question of whether such broad criminal responsibility indeed follows sufficiently unambiguously from the jurisprudence of the international tribunals - such an interpretation would be justified only if it were also in line with the Supreme Court's interpretation of the doctrine of functional perpetration, to which the requirements of power of disposition and acceptance are central. However, that is not the case.

In addition, the court does not see sufficient evidence in the case file to support the contention that the accused formed a close-knit, collaborating group of perpetrators focused on, among other things, organising and perpetrating violence against Ukrainian military aircraft. It is true that all four accused belonged to the military branch of the DPR and regularly cooperated in their fight against the Ukrainian army, but in the court's opinion, that collaboration, when it came to shooting down aeroplanes and helicopters, was not as close as the prosecution claims. Indeed, it does not follow from the case file, with respect to the various incidents surrounding the downing of aircraft, that the four accused were involved in each of them or predominantly so. In many cases, the only thing that can be deduced from the case file is that Ukrainian aircraft were (probably) shot at or downed by DPR or LPR fighters, without it being clear which specific combat units or individuals were involved. In addition, those incidents were too spread out in time and not sufficiently linked to concrete actions of the four accused for the conclusion to be drawn that precisely these four accused, other than because of their involvement in the DPR, were so closely involved in systematically shooting down of aircraft that it can be concluded that the four of them were working together for that purpose or were part of a close-knit, collaborating group of perpetrators.

6.2.5.2 Assessment frameworks

To answer the question whether the principal charges under the first and second count in each case can be proven, the court will first briefly consider some general assessment frameworks that play a role in the legal variants charged, namely those of functional perpetration (being a functional perpetrator), co-perpetration and functional participation.

Functional perpetration

The crux of functional perpetration is that a person who does not physically commit a criminal offence, but instead does so through one or more others, is still punishable as a perpetrator because the circumstances of the offence show that he bears responsibility for that action. The action of the actual perpetrator is then imputed to that other person, because by society's standards it is reasonable to hold that other person criminally liable for it. The application of this perpetration variant, i.e. where one natural person is held responsible for the actions of another natural person, requires that the offences charged also be capable of being committed functionally. The court finds that the offences of causing an aircraft to crash, likely endangering lives, and of killing persons, can be committed functionally.

Next, it must be considered whether those actual acts of causing a crash and killing can also be imputed to the accused. Such attribution, according to the Supreme Court, requires, in principle, that the accused "had the power to decide whether or not the actions would occur" (i.e. did the accused have control over the act(s) committed by the physical perpetrator(s) and could he intervene therein?) and that such or similar actions "were or were wont to be accepted by the accused as evidenced by the actual course of events" (i.e. whether the accused approved or habitually approved of such actions). That (habitual) acceptance includes (habitually) letting it happen, or not exercising the care that could reasonably be required of the accused with a view to preventing it. In short, therefore, for the actions to be imputed to the accused, there must be power of disposition and acceptance.

Co-perpetration

For co-perpetration to be proven, there must be sufficiently close and deliberate collaboration with one or more others, whereby the emphasis is more on the cooperation and less on the question of who carried out which actual acts. The court must determine that the accused's intellectual and/or material contribution was of sufficient weight. In assessing whether there is co-perpetration, the judge may take into account (among other things) the intensity of the collaboration, the division of tasks among perpetrators, their role in the preparation, execution or completion of the crime, the importance of the role of the accused, their presence at key moments and their failure to withdraw at an appropriate time. When the accused's contribution is not made during the perpetration of the criminal offence in the form of joint perpetration, but rather in the form of various actions before and/or during and/or after the criminal offence, the evidence must show how that contribution was of sufficient weight. ^[204] In the event that the accused's contribution at its core does not consist of joint perpetration, but of actions that tend to be associated with complicity, the assumption of co-perpetration requires further justification.

Functional participation

Functional participation can be said to have occurred if both the requirements of functional perpetration and the requirements of the concrete form of participation (e.g. co-perpetration) are met. For example, a director who allows a subordinate, with his consent or at his direction, to co-perpetrate or incite an offence.

6.2.5.3 Assessment of the actions of the four accused

By applying these assessment frameworks to the previously established actions of the accused, one arrives at the considerations below on whether a perpetration variant contained in the indictment under the first or second count can be proven.

Why was MH17 downed: intent, unlawfulness and premeditation

The court notes - along with the prosecution and counsel for defendant Pulatov - that the actions of the crew of the Buk TELAR when launching the Buk missile at MH17 cannot be established on the basis of the case file. The case file also fails to identify who gave the instruction to launch a missile, and why that order was given.

The court has found that the Buk missile was fired from a farm field near Pervomaiskyi and that that area was under the control of the DPR at the time. The Buk TELAR was deployed in the DPR's fight against the Ukrainian armed forces, to bring down Ukrainian military aircraft. Indeed, DPR forces were suffering greatly from air strikes by Ukrainian military aircraft.

In what is known as the target acquisition process that precedes the firing of a weapon such as a Buk TELAR, a target is identified in order to achieve a certain effect. The target is then checked, and a decision is made whether or not to fire a missile. These steps and decisions are not only related to the technical functioning of a weapon system such as a Buk TELAR, but are also prescribed for participating in hostilities, according to international humanitarian law (the law of war). Consideration must also be given to whether the deployment of the weapon will or can result in damage to unintended objects or victims. This may lead to the decision to abandon or abort deployment of the weapon, for example, if it is recognised that the target is in fact a civil aircraft.

The case file contains no information about what occurred in the Buk TELAR just before the Buk missile was fired. Therefore, the court cannot determine whether a civil aircraft was deliberately shot at or whether the missile was fired in the assumption that MH17 was a military aircraft. However, the court can determine the following.

A Buk weapon system is primarily intended to be used to shoot down (enemy) aircraft. The death of enemy occupants may also be an intended purpose of shooting down the aircraft, but it need not be. Due to the enormous destructive power of the weapon and its effects, which effects the court itself observed during its inspection of the reconstruction, and the weapon’s great altitude range, the likelihood of those on board the aircraft surviving the attack is nil, and anyone deploying a specialised, expensive weapon such as a Buk TELAR is aware of this. Operating a Buk TELAR requires a well-trained crew. Furthermore, the weapon cannot be casually deployed. Deployment demands the necessary preparation, including designation of and transport to a location where the weapon can be used. Making the system ready and the actual firing of a missile follow a set procedure, described previously. It is precisely this extensive preparation, consisting of many steps, that leads to the conclusion that the opportunity existed to think about and consider the intended act. The court finds it plausible that that opportunity was indeed used.

This means that the firing of a Buk missile is neither accidental nor does it happen on a whim. Instead, it is very deliberate and well-considered, according to a set method of operation (prescribed by technical requirements). Therefore, in the court's opinion, it can be said that there was intent and a certain deliberation concerning the firing of the missile at the target in question, and that the nature of the weapon and the purpose of its use mean that it is clear what the consequences of the intended firing would be, namely, the destruction and crashing of the aircraft and, in all probability, the death of all those on board.

Bringing down this aeroplane, which was flying at an altitude of ten kilometres, in this way, in the opinion of the court, automatically would lead to the death of all those on board. Legally speaking, this means that the intention of the crew of the Buk TELAR was to take the lives of those on board of this aircraft and that this was done with premeditation. There is no evidence of any indication to the contrary to which more weight should be given. Also, the intention of the crew was to cause this aircraft to crash by firing a Buk missile, although this was likely to endanger the lives of the occupants of said aircraft, as a result of which 298 people died. The crew was in no way justified in shooting down aircraft, meaning the unlawfulness of that action is a given.

Since the deployment of a Buk TELAR in this context was aimed at downing one or more aircraft with all that this entails, it must be assumed that the aforementioned intent and premeditation were present not only on the part of those who fired the missile, but also on the part of anyone who contributed to making the deployment of this weapon possible. As previously considered, there is no indication that those who played a role in enabling the deployment of this weapon assumed that the weapon would not actually be deployed. That they contributed to that deployment with the intention that it would bring down a military aircraft and not a civil aircraft does not change this, as will be explained below.

Mistake scenario

Before the court addresses the question of whether these charges can be proven with regard to the accused, the court will consider whether the possibility or even likelihood that it was thought that the aircraft that was shot down was a military aircraft, and that there was no intention to strike a civil aircraft
(error in objecto/persona ), is of any significance in assessing intent in this criminal case.

First and foremost, the court considers it completely implausible that a civil aircraft was deliberately downed. Not only because it is impossible to see what purpose that would have served, but also because neither the case file nor the trial provide any indication of this. On the contrary, the statement of M58, who was present in the field, and the telephone reactions following the downing of MH17 rather show that those involved initially thought that they had succeeded in shooting down a Ukrainian military aircraft. A mistake being made is something the court does find plausible, especially in a situation where only a Buk TELAR operating independently is being used and no other aircraft are flying nearby with which the target can be compared. Therefore, the court will proceed on the assumption that it was believed a military aircraft was being downed.

In a situation where the wrong target is mistakenly impacted in the execution of a crime, case law of the Netherlands Supreme Court, among others ^[205] , holds the physical perpetrator of the crime responsible without prejudice. The reasoning here is that in the crime of murder, the intent is to kill another person with premeditation, and if it turns out afterwards that not the intended person, but another person was killed, the definition of the offence is still met, namely that another person was intentionally killed. In the court's view, this also applies to intentionally and unlawfully causing an aircraft to crash. If in retrospect it turns out that a different type of aircraft than the intended type was shot down, the definition of the offence is still met. The fact of the matter is that, in the absence of combatant privilege, killing a soldier warrants punishment as much as killing a civilian, and shooting down a military aircraft warrants punishment as much as shooting down a civil aircraft. Further, if the intention was to shoot down an aeroplane that should not have been shot down and an aeroplane was shot down that should not have been shot down, then, at the very least, the substantial likelihood of killing people who also should not have been killed was accepted. In the eyes of the law, there is no difference between the two aircraft, nor the status of those on board. Therefore, the mistake does not negate the intent or premeditation.

In a situation such as the present one, in which the accused is not the one who physically committed the offence himself, because he did not himself press the button - and thus did not himself commit the mistake - the reasoning seems to be more nuanced. The case law of the lower courts also holds this remote participant, such as the person having given the orders, responsible for the mistake if they knowingly accepted the substantial likelihood that the mistake could be made by the physical perpetrator. ^[206] Thus, conditional intent seems to be required here. Upon closer examination of this case law, the court notes that in each of these cases, this conditional intent was assumed and the accused found guilty. In substantiating conditional intent, however, those cases referred to circumstances that actually implied a much lower threshold than conditional intent. Rather, it seems that criminal responsibility of the remote participant stands if it can be concluded that he did not make every effort to prevent the mistake. In all of the case law from lower courts on this subject, circumstances are described that would normally be considered, at best, to be less serious wrongdoing that might have had some risk-increasing effect. Nonetheless, these circumstances were cited as guiding considerations for assuming conditional intent for the mistake, thus upholding the criminal responsibility of the remote participant. None of those cases has been quashed by the Netherlands Supreme Court. Since these cases were upheld without any reasons given on this point, it is not clear whether this is due to the fact that the Netherlands Supreme Court endorses setting the requirement of conditional intent for the mistake (based on such less serious charges regarding the mistake), or whether the Supreme Court, while disapproving of any additional requirements being imposed, nevertheless saw no reason to quash the judgment because in each case, the remote perpetrator was found guilty.

In the court's opinion, it is incorrect to impose the requirement of conditional intent or a different degree of culpability in the case of a remote participant - unlike in the case of a physical perpetrator - when determining whether a mistake made by the physical perpetrator can be imputed to this remote participant. After all, it is equally true that these remote participants knowingly played a role in a crime. The fact that the execution of that crime mistakenly involved the wrong victim should not absolve the participant of responsibility any more than the physical perpetrator. In concrete terms, those who have played a criminally culpable role in the deployment of a Buk TELAR with the purpose of shooting down a military aircraft (a similarly proscribed act) are therefore responsible for the consequences of that unlawful deployment for that reason alone, even if the crew of the Buk TELAR mistakenly shot down a civil aircraft instead of a military aircraft in the execution of that crime.

In addition, the court holds that, even if the jurisprudence of the Netherlands Supreme Court should be understood to mean that a court must indeed ascertain whether there are reasons to believe that there was conditional intent on the part of the remote participant with respect to the mistake, this does not impede this court in declaring the charges proven in the present case. In this regard, the court notes first that the accused themselves have not argued any circumstances on the basis of which it should be concluded that they took all possible precautions to avoid any error. The mere fact that the Buk TELAR was ordered including a crew is totally insufficient for this purpose. The accused knew a particularly high-range anti-aircraft weapon was being deployed in a situation where there was still frequent civil air traffic. Their knowledge of civil air traffic is evident from intercepted conversations and, moreover, was very easy to obtain, from spotters, radars or the internet. In such a situation, it is crucial that every effort be made to enable the crew of the Buk TELAR to identify the correct target. Despite this, only an independently operating Buk TELAR - without TAR ^[207] - was deployed in a chaotic situation close to the battle front; therefore, the great risks involved were apparently accepted.

Assessment of the actual conduct of the accused and others

To this end, the court has established the facts and circumstances regarding the transport and deployment of the Buk TELAR on 17 July 2014. In the preceding days, fighting between the DPR and Ukrainian armed forces was fierce. As stated, the court assumes that the Buk TELAR was intended to be used in that fighting, for the benefit of the DPR. What did the accused contribute to this, and what conclusions does the court draw?

The Buk TELAR crew members, as those who actually fired the missile, can each be considered the perpetrator or co-perpetrator of firing the Buk missile. They actually committed the offences charged in deliberate and close cooperation. The question the court has to answer is whether what was charged in this case can be found proven with respect to the four accused.

If the accused made a substantial direct contribution to the eventual firing of the Buk missile, then criminal liability for that action and its consequences comes into play. This is the case even if they bear more remote, and thus rather indirect, responsibility for the Buk missile being fired.

It is a given that a Buk missile can only be fired if the Buk TELAR required to do that is also available. Moreover, that Buk TELAR must be positioned in a place suitable for firing. A Buk TELAR can fire multiple missiles and be deployed at different times and locations, that is, over a somewhat longer period of time. Precisely because of the (strategic) value of a Buk TELAR, it is important that on its journey to and from the appropriate firing site, that Buk TELAR be escorted past checkpoints, and at the firing site itself be guarded and secured against enemy attack. Therefore, escorting and guarding the Buk TELAR
en route to and at the appropriate location is a crucial task, which, in the court's view, makes the person responsible for that a substantial contributor to the overall deployment of the Buk TELAR as such. Firing a Buk TELAR also requires a trained crew, which must be available at the planned launch site. So arranging this is also crucial to the deployment of the Buk TELAR. The court deems all of these factors to be substantial contributions to the realisation of the ultimate goal: firing a Buk missile at a designated or selected target. The person who contributes to these factors being fulfilled, thereby, in the court's view, makes such a substantial and material contribution to the eventual firing of a missile from the said Buk TELAR that that person can be considered a co-perpetrator.

Contributing to this is the fact that the evidence shows that this particular Buk TELAR was deployed in the fight that the DPR was waging against the Ukrainian military authorities, and indeed, this Buk TELAR was used to fire a missile from an area held by the separatists in combat to establish a corridor that was of great importance to those separatists (and their battle). Indeed, the corridor connected the part of the Donbas that the separatists already controlled to the Russian Federation, providing a direct and short supply route for equipment to the occupied Donbas area. In light of the DPR's objective of achieving greater independence from Ukraine, by force if necessary, whereby control and authority had already been taken (in part of) the Donbas, the Buk TELAR was an essential weapon to achieve that goal, given Ukraine’s military air superiority in the conflict on the days around 17 July 2014, specifically in the area around Snizhne. Thus, all actions related to obtaining and deploying the said Buk TELAR contributed towards the realisation of the DPR's goal. As a result, it can be stated that the Buk TELAR, regardless of who concretely had authority and command over its deployment and regardless of the specific instructions given to its crew, was for the use and benefit of the DPR. In short, the Buk TELAR was deployed for the DPR's struggle and served that purpose in any case.

The court must answer the question of whether the proven conduct of the accused was such that it constitutes conventional co-perpetration or - the principal charge of the prosecution - that although the accused did not personally commit the offence in a physical sense, he can be held responsible for it - jointly with others or severally. The answer to that question cannot be given in general terms, but requires an assessment of the concrete acts of the accused considered individually as well as in connection with each other.

Kharchenko had been instructed by his hierarchical superior Dubinskiy to transport, to escort and to guard the Buk TELAR, until it reached its eventual launch site at Pervomaiskyi. Kharchenko carried out that instruction and, in implementing those tasks, among other things, he issued orders and instructions to his subordinates. He also subsequently informed Dubinskiy of the successful deployment of the Buk TELAR and of the fact that it had been secured. In addition, once again at Dubinskiy's behest, he organised the removal of the TELAR.

The court views Kharchenko as a cooperating foreman in essential actions that contributed to the actual firing of the Buk missile. His efforts and involvement in advance, and also in the return of the Buk TELAR to the Russian Federation, represent substantial contributions to the eventual deployment of the Buk TELAR at the launch site. In so far as Kharchenko himself contributed to the execution, he did so in close and deliberate cooperation with others involved in the deployment, including the crew. As such, Kharchenko must be viewed as a co-perpetrator of the offences charged under the first and second count.

However, in both a factual and a legal sense, he is also criminally responsible for his subordinates' contribution to the deployment of the Buk TELAR. After all, he was not only aware of the plans regarding the deployment of the Buk TELAR, but also instructed his subordinates to make a substantial contribution to that deployment, specifically consisting of escorting the Buk TELAR, guarding the Buk TELAR at the field, and subsequently removing it. Thus there was also the control and acceptance required for functional perpetration. However, the court does not need to draw a legal conclusion on whether Kharchenko should also be characterised as a functional perpetrator, as the prosecution has argued and explicitly substantiated. With reference to the earlier comments on the validity of the summons, the court reiterates that the functional perpetration of a criminal offence must by its nature be considered an alternative variant. After all, the crux of the accusation levied against Kharchenko is that he himself, by escorting the Buk TELAR to and guarding it at the launch site and organising its removal, made a substantial contribution to the deployment of the Buk TELAR, with disastrous consequences. For that reason, the court declares the principal charge of co-perpetration under the first and second counts to be proven with respect to Kharchenko.

Dubinskiy, the ranking military commander within the DPR, fulfilled an initiating and organising role in the transport of the Buk TELAR from the Russian Federation in the night and early morning of 16 to 17 July 2014, and a directing role on 17 July 2014 as the party who ordered the transport to and guarding of the Buk TELAR at the launch site. He left the actual implementation of these tasks to his subordinates, to whom he issued the necessary orders and in respect of whom he was therefore in a position of authority as their superior. The court considers these actions to be of such essential and substantive importance for the execution of the offence that these actions can be characterised as co-perpetration. In doing so, Dubinskiy worked closely and deliberately with Kharchenko and the crew. These actions are furthermore confirmed by Dubinskiy's actions in the removal of the Buk TELAR following its use. In respect of Dubinskiy, therefore, the principal charges under the first and second count as co-perpetrator can be legally and conclusively proven.

At the operational level, Girkin was the DPR's ranking military commander, and as such had (final) responsibility for the deployment of military equipment in and for the DPR. Intercepted conversations reveal that Girkin maintained very regular contacts with Moscow concerning equipment and concerning obtaining practical military support, including anti-aircraft weapons with trained specialists on 8 June 2014, with a view to holding eastern Ukraine. This can have had no other purpose than to deploy these systems in the battle being waged by the DPR. It is apparent from the case file that this is also what happened. Under Girkin's authority as ranking military commander, much fighting took place, resulting in loss of life and injuries, and material damage. This included firing on aircraft and helicopters, which on numerous occasions resulted in their crashing.

Although highly plausible given his position, the evidence does not show that Girkin was aware of the availability of a Buk TELAR on 17 July 2014, before it was fired. Nevertheless, Girkin was and continued to be kept abreast of the current situation regarding the fighting around the corridor, and he issued orders in that connection. For example, he issued instructions for the supply and movement of tanks and determined who was in command. However, Girkin made no reference by telephone to a Buk or its deployment. As ranking military commander, Girkin was in a position to decide whether or not a Buk TELAR should be deployed. That authority followed from his position as Minister of Defence, the hierarchical superior to Dubinskiy and Kharchenko, and is also reflected by the telephone conversations held by Girkin, once it became clear that the deployment of the Buk TELAR had gone wrong. At that point, Girkin became actively involved in the return of the Buk TELAR to the Russian Federation, issued the necessary orders and maintained telephone contact on the matter to ensure that he was informed that his orders had in fact been carried out. Furthermore, conducting the armed conflict was an important means, and was indeed specifically the primary means employed under the authority of Girkin as ranking military commander, for achieving the objectives of the DPR. For that reason, the court finds that Girkin had the power to decide on the deployment of the Buk TELAR on 17 July 2014 (power of disposition). In the armed conflict, which had been going on for some time under Girkin's operational command, all possible military means were used to defeat the enemy. That included bringing down aircraft with the available means. That the deployment of military means had led to loss of life was a fact of which Girkin was of course also fully aware. This is certainly also the case in respect of the deployment of anti-aircraft artillery to down aircraft; something which had already occurred on numerous occasions prior to 17 July 2014. As the case file contains no evidence that Girkin was aware of the availability of a Buk TELAR on 17 July 2014, it cannot be said that Girkin actually accepted its deployment. However, given his earlier request for reliable anti-aircraft artillery, the fact that Girkin was aware of the deployment of military equipment with which various aircraft had already been downed, resulting in loss of life, and never took action to stop it - quite the contrary - and the fact that on and around 17 July 2014, Girkin was actively involved in the military operation in and around the corridor, it can certainly be said that Girkin would have accepted a deployment such as that of the Buk TELAR on 17 July 2014, resulting in loss of life. That is also apparent from his actions after the event: instead of denouncing the deployment, he actively worked to make the evidence disappear as quickly as possible in order to prevent the outcry he apparently expected. For that reason, the court finds it legally and conclusively proven that Girkin was in a position to decide (dispose) on the deployment and use of the Buk TELAR and that he accepted it, including all its consequences. Therefore, Girkin - unlike Dubinskiy and Kharchenko - can be regarded as a functional perpetrator of these co-perpetrated offences. However, in respect of him, this results in the same finding, namely that the principal charges under the first and second count as co-perpetrator can be declared legally and conclusively proven.

In the indicted period, Pulatov was area commander in the wider Snizhne area. In that area, he commanded men and was tasked with establishing and maintaining the previously mentioned corridor. The court notes that the said corridor was important for maintaining and reinforcing the DPR's position in the Donbas area. Seen in that context, as coordinator, Pulatov fulfilled a very important position and role in that part of the Donbas. It follows from information compiled from the aforementioned intercepted conversations that, on 17 July 2014, the broader task of managing the corridor at least involved taking delivery and strategically deploying a number of tanks supplied by the Vostok battalion, and taking delivery of and deploying the Buk TELAR. In the morning of 17 July 2014, Dubinskiy informed Pulatov that Kharchenko would provide Pulatov with a Buk TELAR, and Dubinskiy instructed Pulatov where the weapon system should be installed and to coordinate all these activities. Shortly before, Dubinskiy had issued similar instructions to Kharchenko, when he told him to travel to Pervomaiske with the Buk TELAR and that it was his task to escort and guard the Buk TELAR. The case file shows that after receiving this instruction from Dubinskiy, Kharchenko did actually set off for Snizhne, with the Buk TELAR, where he agreed to meet Pulatov at the Furshet.

It follows from the intercepted conversations that in the early afternoon of 17 July 2014, a meeting did take place between Kharchenko and Pulatov at the Furshet in Snizhne, at the moment Kharchenko arrived there with the convoy that included the Buk TELAR. However, it cannot be determined from the case file what happened or what was said at the Furshet. It is certain that following this meeting, Kharchenko simply continued carrying out the instruction he had already received from Dubinskiy. The court is therefore unable to conclude that Kharchenko continued his journey toward Pervomaiskyi at Pulatov's behest. After all, he had already been issued with this instruction by Dubinskiy, the superior of both Kharchenko and Pulatov. It is, however, certain that Pulatov did not stop Kharchenko from continuing to carry out his instructions.

Shortly following that meeting at the Furshet, Pulatov called and was called by a phone number that can be attributed to the crew of the Buk TELAR. However, no contact was established. It is also noteworthy in this regard, as the prosecution (only) argued in reply, that shortly after those unsuccessful contacts with Pulatov around the time the Buk TELAR arrived at the farm field near Pervomaiskyi, this phone number made contact with
14th, someone from the DPR's military intelligence department. Half an hour later, this
14th heard from a plane spotter that no guests were expected, even though they were waiting for them. Unlike the prosecution, the court does not see this as evidence of an active or even crucial involvement by Pulatov in the execution of the instruction issued by Dubinskiy. After all, the telephone connection between Pulatov and the crew was not made, and (nonetheless) the instruction continued to be carried out. Therefore, the (failed) contacts can have had no decisive influence on the carrying out of the instruction, or at least no such decisive influence can be determined. In the opinion of the court, the relationship between Pulatov and plane spotters suggested by the prosecution with reference to, among other things, these telephone contacts, is highly speculative and in no way justifies the conclusion drawn by the prosecution that Pulatov was the linchpin between the intelligence branch of the DPR on the one hand and the crew of the Buk TELAR on the other. Quite apart from the fact that the conversations between Pulatov and the crew did not come about, there are no intercepted conversations in the case file that show that the crew of the Buk TELAR received a warning from (one of) the spotters from this intelligence branch around the time of the crash, nor are there any intercepted conversations from which it can be inferred that Pulatov coordinated the positioning, guarding or deployment of the Buk TELAR in any way. The basis for this line of reasoning is therefore considered to be so thin by the court that it does not find that these calls demand explanation by Pulatov. Furthermore, it is sufficiently certain that Pulatov was not in the vicinity of the launch site at or around the time the Buk TELAR actually fired its missile.

Therefore, the court does not find it legally and conclusively proven that defendant Pulatov made any (physical) contribution to the deployment of the Buk TELAR. What remains is the question of whether defendant Pulatov, like the accused Girkin, should be considered a functional co-perpetrator.

In that context, the court finds it proven that defendant Pulatov was aware of the deployment of the Buk TELAR in the operation for which he was designated coordinator. Moreover, there is no evidence anywhere that Pulatov objected to the arrival and deployment of the Buk TELAR from the moment he knew that it was available to the separatists and that it was to be deployed in the operation around the corridor. For that reason, in the opinion of the court, it can be concluded that Pulatov accepted the deployment of the said Buk TELAR.

As to the existence of the power to decide or command (dispose) the deployment of the said Buk TELAR, the court concludes that Pulatov had received the specific order from Dubinskiy to remain in the vicinity of Pervomaiske to guard the Buk TELAR that was
en route towards him and to organise all related matters. However, as mentioned, the instruction to escort the Buk TELAR to Pervomaiske and to guard it had also been issued to Kharchenko, by Dubinskiy, shortly before. Kharchenko actually carried out this instruction; he escorted the transport convoy from Donetsk via Snizhne to Pervomaiskyi and organised the guard on arrival. Therefore, not only is there no evidence whatsoever that Pulatov's intervention contributed in any way to carrying out the instructions as issued to Kharchenko by Dubinskiy, but also there is no indication that he could have changed the situation. Irrespective of the precise hierarchical relationship between Pulatov and Kharchenko on 17 July 2014, and whether Pulatov was in general able to issue orders to Kharchenko, there is nothing to suggest that Pulatov had the authority to alter or withdraw an order issued, in this case, directly to Kharchenko by Dubinskiy. His coordinating role in the military operation around the corridor does not place him above Dubinskiy. The court therefore finds that the power of disposition required for functional perpetration was lacking in relation to defendant Pulatov.

In brief, in the court's view, there is no evidence that Pulatov himself made any actual contribution to the deployment of the Buk TELAR, and Pulatov bears no criminal responsibility for the contribution of others to this deployment. This means that not only is there no functional perpetration, perpetration or co-perpetration, the principal charge, but none of the other perpetration variants charged apply either. The finding therefore is that Pulatov must be acquitted of each of the charged variants of both offences.

6.2.6

Final conclusion on the assessment of charges

In view of the above, the court finds it proven that the accused Girkin, Dubinskiy and Kharchenko intentionally (and unlawfully) (functionally) co-perpetrated the offences charged principally under the first and second count, and in the case of the offence charged principally under the second count, also acted with the premeditation required for murder. That finding is not altered by the fact that the accused may not have wanted to shoot down a civil airliner, nor that 298 innocent civilians be killed as a result.

7. JUDICIAL FINDING OF FACT

With respect to the accused Kharchenko, the court finds that it has been lawfully and conclusively proven that:

1. Principal charge

on 17 July 2014, in Ukraine (in the Donetsk oblast) he, together and in association with others, intentionally and unlawfully, caused an aeroplane (namely flight MH17) to crash, by firing a Buk missile by means of a Buk TELAR (near Pervomaiskyi), although this was likely to endanger the lives of the occupants of said aeroplane (of whom the 298 names are set out in the annex to the indictment ^[208] ) and said occupants were killed as a result;

2. Principal charge

on 17 July 2014 in Ukraine (in the Donetsk oblast) he, together and in association with others, intentionally and with premeditation, took the lives of the occupants of an aeroplane (namely flight MH17) (of whom the 298 names are set out in the annex to the indictment ^[209] ), by using a Buk TELAR to fire a Buk missile at that aeroplane (near Pervomaiskyi), which caused the aeroplane to crash and said occupants to die.

8. PUNISHIBILITY OF THE CRIMES PROVEN

The crimes proven are punishable under the law because no facts or circumstances have been demonstrated which exclude the offences from punishment.

Regarding the provisions on concurrence of criminal offences, the court notes the following. The tenor of the charges proven under the first and second count does not differ substantially, as protecting the lives of persons from attacks on aircraft is not fundamentally different from the protection of human life as such. Therefore, in the court's opinion, the proven conduct relates to a coherent body of facts, occurring at the same time and place, so that the accused can essentially be reproached for one continuous act. This means that these two proven offences arose from the same act. In this particular case, both proven offences are subject to the same sentencing, namely life imprisonment or a limited term of imprisonment of up to 30 years.

The second proven offence is a consequence offence that resulted in the death of 298 people. This offence is also a multiple criminal offence, namely one committed many times.

The court will therefore consider Sections 55 (concurrence of offences arising from the same act) and 57 DCC (concurrence of offences arising from multiple acts) in determining the punishment. The charges proven equate to the offences set out in the operative paragraphs of this judgment.

9. PUNISHIBILITY OF THE ACCUSED

The accused faces punishment because no facts or circumstances have been demonstrated which exclude his criminal liability.

10. SENTENCING

10.1

Prosecution's application for sentencing

The position of the prosecution is that the accused must be sentenced to life imprisonment. To this end, the following has been argued (in brief).

The accused Girkin, Dubinskiy and Kharchenko, as persons holding leading positions within the organisation of the DPR and part of an armed group, jointly supervised the deployment of a Buk missile system for their own armed conflict on 17 July 2014, with which flight MH17 was shot down. They initiated, organised and carried out that violence through others. In the eyes of the law, the accused were civilians who had no right to commit any form of violence, against any target, civil or military. The consequences caused by the accused are extraordinarily grave. Not only have the lives of 298 people been taken under horrific circumstances, but the lives of countless relatives of those people have been scarred forever. Furthermore, because of them, the people living in the vicinity of the crash area were confronted with the awful consequences of the crash of MH17 and the death of its occupants. The accused created an international shockwave that resounds to this day. There is no evidence that the accused gave any thought to the particular danger they were creating for civil aviation by deploying a Buk missile system.

The prosecution pointed out that there are no examples of similar cases in Dutch case law. Moreover, the facts in the present case are incomparable to those in other cases on which international criminal bodies have ruled, so there is no reference to be found there either with respect to the sentence to be imposed. However, the Lockerbie case and a fairly similar case from Ukraine do offer some reference as to the sentence to be imposed. Given the planning, the great violence and atrocity, the far-reaching consequences for the relatives, the serious violation of the rule of law and the fact that there were 298 victims, only the imposition of a life sentence is appropriate and justified. The prosecution has stated that ECtHR case law does not impede this.

The prosecution sees no reason to seek a lesser sentence in the different roles of the accused, the accused’s stance with respect to these proceedings or his personal circumstances. Finally, even the fact that the ‘reasonable time’ requirement within the meaning of Article 6 ECHR was violated is not a reason to reduce the sentence, leaving aside the fact that this is not possible when imposing a life sentence.

10.2

Decision of the court

10.2.1

Penalty carried by the crime

The court has found the two charges proven. For both offences, the Dutch Criminal Code provides that either a limited term of imprisonment of 30 years or a life sentence may be imposed. However, since two offences arose from the same act, the maximum punishment to be imposed in this case is a limited term of imprisonment of 30 years or a life sentence.

In determining the sentence, beyond the gravity of the offences which is clear from the maximum sentences referred to above, the court will look at the gravity of the consequences of those offences. These two factors determine, to a very large extent, whether a limited term of imprisonment is sufficient and appropriate punishment, or whether life imprisonment should be applied. Next, the court will assess whether there are factors which bear on the weight of the sentence to be imposed, be they aggravating or mitigating. These include such matters as the intent, the mindset of the accused, his personal circumstances, his specific role, position, and place in the hierarchy at the time the offences were committed. Finally, the court will comment on whether these proceedings were conducted within a reasonable time and on the consequences of the procedural error made by the prosecution in launching an application on the internet.

10.2.2

The direct consequences of deploying the Buk TELAR

Firstly, the court wishes to state that persons other than the accused in this criminal case may be reproached for the fact that the separatists deployed and used a Buk weapon system. The fact of the matter is that the weapon had to be provided before it could be deployed. It had to be transported, secured and guarded and the deployment itself must have been planned and implemented. It is the view of the court that anyone who played a role in this bears, at least, moral responsibility for the consequences of deploying such a weapon, which by its very nature is capable of causing the total destruction observed during the inspection of the reconstruction. Moreover, for so many, it did in fact destroy everything.

First and foremost, of course, are the 298 people, men, women and children who died. In an instant, without warning, their lives, and those of their loved ones seated next to them, were cruelly ended. No one knows what those final moments were like, but inevitably terrible images come to mind. In that single moment, these people were robbed of their life and future. The accounts of the relatives make it abundantly clear that the victims had been enjoying full lives. Their lives were far from over, indeed some had barely begun, and their futures could have held so much. The future was brutally stolen from them.

That destruction also had a severe impact on the lives of the relatives. The many statements by relatives - in writing or given at the hearing - have made poignantly clear how much the victims are still missed in the lives of those left behind. It was made clear to the court, with great effect, just how completely different those relatives’ lives were after the MH17 disaster: clearly, there was life before the disaster and life after it, as several relatives mentioned. The court considers it impossible for anyone to comprehend how it was for the relatives to receive the message that their loved ones had died as a result of MH17 being downed and how it was for them to have to continue on afterwards. The consequences for many relatives have proven to be unimaginably great. In some cases, they have lost several children, grandchildren, parents, grandparents, brothers, sisters and other members of the family. At a stroke, their life has been changed in a terrible way; a situation that persists to this day and will continue for ever. A number of relatives are experiencing physical and lasting psychological effects and in some cases changes in work, education or career as a result. In addition, in some instances there have been major financial implications. All of these aspects came to the fore when the relatives exercised their right to address the court and when the claims for compensation were dealt with. The court will address the claims for compensation more broadly later, but these aspects play an important role in determining the sentence to be imposed.

The court also wishes to refer to the impact that the crash has had on the local people of eastern Ukraine. They, too, were confronted with the awful consequences of the downing of MH17 on 17 July 2014. Wreckage and people fell from the sky, in some cases literally through the roof of their homes. It took days and sometimes weeks before recovery and repatriation of the victims and wreckage began. This too must have been appalling for them.

To the day of this judgment, no one has come forward to clarify who is or are responsible for this tragedy. Neither the results of all the technical investigations into the cause of the MH17 crash, nor the criminal investigation nor the comprehensive trial that was livestreamed and attracted attention worldwide have prompted anyone to explain and take responsibility. Uncertainty about the cause of and the reasons for this catastrophe therefore persists. This is a source of frustration to the relatives that, according to the accounts of some, truly stymies their healing process.

Therefore, the court will consider these facts and circumstances very seriously in determining an appropriate sentence.

10.2.3

Attitude of the accused

Once it became clear what had happened on 17 July 2014, and the accused became aware that a civil aeroplane had been downed resulting in hundreds of deaths, including those of dozens of children, all three accused became actively engaged in transporting the Buk TELAR back to the territory of the Russian Federation, from where it had arrived earlier that day. This was done to conceal what had happened and the involvement of the DPR separatists with the support of the Russian Federation; such an international scandal had to be avoided at all costs. The behaviour of the accused in the wake of the downing of MH17 casts their acts in a further negative light and is an aggravating factor with respect to the weight of the sentence to be imposed.

The court also takes into account that none of the accused have come forward to the JIT to make a statement, in which they could have cast light on what actually happened. However, far from the courtroom, they have made statements about this criminal case and about the fact that they were charged, but have denied being involved in any way.

Girkin has repeatedly and somewhat suggestively claimed that the DPR fighters did not participate in the downing of flight MH17. Beyond that he remains silent on the matter. He has, however, made very hurtful comments about the occupants of the aeroplane, comments that were close to being disrespectful.

Dubinskiy has said on a number of occasions that he was not involved in the MH17 flight crash. He rejects all involvement out of hand and casts doubt on the investigation and its results by making baseless statements about the manipulation of intercepted telephone calls and non-existent witnesses. That is in stark contradiction to the determinations which the court has made in its judgment based on the evidence available.

Kharchenko has stated that there was no Buk TELAR located in the relevant area, nor did he ever see it. In so doing, he too rejects any involvement out of hand. This position too stands in stark contradiction to the many facts and circumstances ascertained by the court.

The court considers the stance and behaviour of the accused, who only react or dare to react from afar, to be divorced from reality and therefore disrespectful and unnecessarily hurtful to the relatives. This can, therefore, in no way have a positive effect on the weight of the sentence to be imposed.

10.2.4

The military context and purpose of the deployment

The crash of flight MH17, a civil aeroplane, sparked worldwide outrage and disapproval. The investigation that followed yielded a great deal of information about the DPR's conflict, about the participants in that conflict and about the developments of that conflict over time. This ultimately led the court to establish in this judgment the facts and circumstances that preceded the downing of flight MH17 and the context in which it occurred.

The court recognises that all those established facts and circumstances quickly risk being coloured in hindsight precisely by the tendency to see them in light of the downing of MH17. Had the deployment of that Buk TELAR on that day and at that time resulted in the downing of a military aircraft resulting in the death of its occupants, it would be appraised and appreciated differently from that perspective.

Although the question of why flight MH17 was downed cannot be answered based on the trial, the court has previously indicated that it assumes that it was the intention of the accused to bring down a military aircraft.

Therefore, although the accused entirely deliberately contributed to the intentional downing of an aeroplane in the knowledge that those on board would die, a military aeroplane does not as a rule have 298 persons on board. Although the downing of a military aircraft was also prohibited, and therefore their intentions cannot exonerate them in any way, the court cannot ignore the fact that, in the context of the combat waged, the downing of a military aircraft would indeed have been of a different order to shooting down a civil aeroplane and deliberately killing 298 men, women and children with no connection to the conflict. Although the intention does not lessen the gravity of the event, it does go to the degree of culpability.

In the opinion of the court, the consequences of the crime are so grave, and the attitude of the accused with respect to what happened is so reprehensible, that - despite the fact that they did not intend to shoot down a civil aircraft - a limited prison sentence cannot, in principle, suffice. Notwithstanding, the court will assess below whether there are personal circumstances that might modify this opinion with respect to one or more of the accused.

10.2.5

Consideration of individual circumstances

The court notes that the three accused were hitherto unknown to the justice system in the Netherlands. The case file contains information on judicial documentation from the judicial authorities of Ukraine regarding Kharchenko, but due to the nature and age of that case, it does not affect the sentencing in this criminal case. Furthermore, the trial did not reveal any personal facts and/or circumstances that the court should take into account when sentencing, either to the benefit or disadvantage of the accused.

However, the court does see reason in decisions regarding sentencing by international tribunals to consider the role and position of the accused when determining an appropriate sentence. In such cases, the court sees that the greater the role of the convicted person and the higher the position of a convicted person in the hierarchy of an organisation, the higher the sentences imposed by tribunals. The duration of custodial sentences may be lower in the case of persons who, although criminally liable, carried out their actions within a chain of command and were more or less obliged to carry out those orders. Therefore, the court will consider the various roles of the accused, their position within the DPR and the latitude they had to influence the use and deployment of the Buk TELAR.

As Minister of Defence, Girkin had the highest rank in operational terms in the armed combat, and as such was responsible for his men. Although it cannot be established that he was aware of the deployment of this specific Buk TELAR, it can be established that he approved and supported such anti-aircraft defence practices that took place under his responsibility. As commander, Dubinskiy can also be seen as the coordinator of and cooperating foreman in all activities related to the supply, transportation, deployment and removal of the weapon. He therefore not only held a high hierarchical position, just below Girkin, but also played a major role in, and thus contributed significantly to, perpetration of the crime. The accused Kharchenko is the one who, by carrying out the orders he received from his commander, Dubinskiy, was most directly involved in the actual perpetration of the proven offences, but also gave orders in turn to his subordinates in this regard. He therefore was part of the middle level of the hierarchy.

The court finds that Dubinskiy's high hierarchical position and the considerable coordinating role he played in having the Buk TELAR retrieved from the Russian border in the early morning of 17 July 2014, and in its direct deployment that same day, as a result of which flight MH17 was brought down, as well as his role in the removal of the Buk TELAR, can only be punished with life imprisonment.

The court considered whether the fact that it could not be established that Girkin had any prior knowledge of the deployment of this specific Buk TELAR, let alone demonstrably made any concrete contribution to it, means that a (maximum) limited prison sentence would suffice for him. However, the court is of the opinion that a limited prison sentence would not do justice to the responsibility that Girkin bore, as Minister of Defence and commander of the armed forces of the DPR, for the deployment of weapons in the conflict. After all, with respect to this specific deployment, it is certain that Girkin not only accepted such deployments, but even facilitated them thanks to his contacts with the Russian Federation. In addition, once he realised the consequences of the crash of flight MH17, he directly intervened in the return of the Buk TELAR to the Russian Federation and took action to facilitate it.

The court considered this aspect too with respect to Kharchenko, who held a lower hierarchical position and performed his duties under the orders of his superior, Dubinskiy. However, here too, the court is of the opinion that a limited prison sentence would not do justice to his direct and active involvement in the deployment throughout the operation. After all, it was he who, along with his men, ensured that the Buk TELAR and crew arrived at the launch site and that the Buk TELAR was guarded there and, under his direct direction, was removed that same evening and night, along with the crew. His lower hierarchical position, therefore, does not counter-balance the above considerations such that a limited prison sentence might suffice. The offences are too grave and his role too great for that to be the case. This means that the court will also sentence Kharchenko to life imprisonment.

10.2.6

Exceeding reasonable time?

Then there remains the question of whether a reasonable period of time has been exceeded. In fact, there is no fixed timeframe
per se , but rather the time concerned needs to be seen in the light of the nature of the case and the way in which the participants in the proceedings have played their roles. The court notes that on 19 June 2019, the prosecution announced that it would prosecute four individuals. The criminal trial opened on 9 March 2020, and comes to an end before this court today. Although the cases of three of the accused were tried
in absentia, the proceedings in those cases unfolded alongside those of defendant Pulatov, owing to the close interrelationship in the substance of the matter. That case was heard in adversarial proceedings, as he was represented at the hearing by his counsel. These criminal proceedings were thus conducted simultaneously over nearly seventy days in court and were the sequel to a lengthy and extensive investigation. Partly because of the size of the case file, the court gave counsel for defendant Pulatov, at its request, time and space to prepare and conduct its defence adequately. Therefore, there has been no unnecessary time spent in court or delay. The court holds that, given the interrelated nature of the cases and the expeditious handling of these criminal proceedings, they were conducted within a reasonable time and that therefore that is not a factor in setting the sentence.

10.2.7

Disclosure of results of the investigation

Finally, the court recalls what it stated when it addressed the preliminary matters with regard to the prosecution announcing the suspects names and personal details and displaying their photographs at a press conference, as well as posting an application on the internet. When addressing this, the court indicated that it would return to the question of the consequences to be attached to the violations identified when it came to determine the sentence. In considering this question, the court takes into account the extent to which the accused claims that these procedural errors have been detrimental to his interests.

Counsel for defendant Pulatov has explained at length that and how these disclosures have been detrimental to the defendant’s interests. This was discussed when the preliminary matters were addressed. However, now that defendant Pulatov has been acquitted, no punishment will be imposed in his case, and so the procedural errors will not lead to consequences.

With regard to the accused Girkin, Dubinskiy and Kharchenko, the court considers that they - unlike defendant Pulatov - have not indicated that their interests have been harmed, let alone explained what interests, specifically, might have been harmed. Under these circumstances, the court sees no reason to attribute such weight to these procedural errors made in their cases also, that a limited prison sentence rather than life imprisonment should nonetheless be applied. In the current circumstances, the consequences of these violations do not sufficiently weigh up against the gravity of the proven crimes.

10.2.8

Conclusion

The court finds the crimes proven so grave and the consequences so great that it concurs with the prosecution that, in this case, only the longest prison term possible is a fitting sentence for what the accused have done, causing so much suffering to the many victims and their relatives. The court realises that imposing this sentence cannot take away the grief, but it expresses the hope that the fact that the matter of guilt or innocence has now, exactly eight years and four months after the disaster, been determined can provide some comfort to the relatives.

All the above leads the court to sentence the accused to life imprisonment.

11. APPLICATION FOR ARREST

11.1

Application for a warrant of arrest

The prosecution has requested that a warrant of arrest be issued for the accused, stating that, in the event of conviction and the imposition of a lengthy prison sentence by the court, it is imperative for public safety that the accused be deprived of his liberty immediately.

11.2

Decision of the court

The court sentences the accused for serious offences which carry a statutory term of imprisonment of twelve years or more and which constitute a serious violation of Dutch and international rule of law. In this regard, the court refers to the contents of the statements made by the victims' relatives when exercising their right to address the court, as well as those of the victim impact statements submitted in writing, which make plain the profound consequences and the intense and deep emotions still felt. It also refers to the great and continued interest in and coverage of the hearing of this case by the national and international media. Under these circumstances, a failure to issue an arrest warrant would not be understood by society. In view of this, the court finds that it is imperative for public safety that the convicted person be deprived of his liberty without delay.

Given the gravity of the crimes proven and the sentence imposed, as well as the fact that there were grounds for pre-trial detention, the court will order a warrant for the arrest of the convicted person. That decision has been rendered in a separate order.

12. CLAIMS OF THE INJURED PARTIES

12.1

Introduction

The court is considering a total of 306 claims for compensation from the relatives of the victims of the proven crimes. These claims are directed at the accused in this case. 304 such claims have been filed on behalf of the relatives by members of counsel for the relatives. The claims filed by counsel for the relatives all seek compensation for pain and suffering (‘
moral damages’ ) only. This compensation for pain and suffering is claimed due to the psychological distress caused by the sudden, gruesome death of their family members and the other dramatic consequences of those deaths, such as the onset of psychological disorders, incapacitation for work, the (grave) disruption of family relationships and having to face regular, unexpected and distressing media coverage of the disaster. The court will return to this distress in detail below.

The two claims not filed by counsel for the relatives relate not only to compensation for pain and suffering for the loss of the claimants’ daughter, but also compensation for material harm, namely compensation for the loss of her laptop and compensation for the cost of the journey made to the crash site in the summer of 2014.

The claims of the injured parties are civil claims that are being assessed within the framework of criminal proceedings: substantively under civil law, and procedurally, in principle, according to the relevant provisions of the Dutch Code of Criminal Procedure.

The assessment of the claims of the injured parties can be broken down into a number of elements:

I. Since the claims are also directed against the accused Girkin, Dubinskiy and Kharchenko, who did not appear in court, the first decision to be made is whether the leave to proceed
in absentia granted with respect to their cases (under criminal law) also applies to the claims of the injured parties; in other words, whether the court may assess these claims despite the fact that the accused did not appear during the trial and therefore did not present any defence.

The court finds that the claims against the said three accused may be heard
in absentia .

Insofar as claims are directed against defendant Pulatov, who did appear in court, they will be heard adversarially; counsel for defendant Pulatov presented a line of defence on behalf of Pulatov against the claims, or at least argued their inadmissibility. Since defendant Pulatov has been acquitted of all the charges, the injured parties have no standing with respect to defendant Pulatov, and the court will not proceed with any further discussion of those claims in this case. The court will proceed with the discussion of the claims with respect to the accused Girkin, Dubinskiy and Kharchenko.

II. Since flight MH17 was shot down over Ukrainian territory and from Ukrainian territory, the victims were of various nationalities and the accused, as co-perpetrators, are domiciled in the Russian Federation or in Ukraine, this civil law component of the proceedings too has an unmistakably international character. This raises the question of whether the Dutch court has (international) jurisdiction; in other words whether the Dutch court may admit and rule on these claims, which relate to an unlawful act committed outside the legal sphere of Dutch courts by non-Dutch nationals. This international aspect also raises the question of under which country’s civil (substantive) law the claims should be assessed.

The court concludes that it has international jurisdiction to hear and rule on these claims, and that that substantive assessment should be carried out under Ukrainian civil law.

Following on from that, the court finds that compensation for pain and suffering (
‘moral damages’ ) can be claimed by and granted to relatives under Ukrainian civil law, despite the fact that in 2014, under
Dutch civil law, no possibility existed to claim for ‘emotional damages’ (which falls under
moral damage under Ukrainian law). The provisions of Section 51f DCCP do not prevent the awarding of compensation for pain and suffering under Ukrainian law, including insofar as compensation for pain and suffering includes emotional damage.

III. The substantive assessment of the claims will result in the claims for compensation for pain and suffering being awarded in their entirety with respect to the accused Girkin, Dubinskiy and Kharchenko, while the claims for compensation of material harm mentioned above will be awarded in part.

12.2

Inadmissibility of injured parties’ claims

At the hearing of 22 April 2021, in the case of defendant Pulatov - in response to a line of defence advanced in that regard by his defence counsel - the court ruled that there was no evident inadmissibility of the injured parties due to a disproportionate burden on the criminal case. No circumstances that should lead to a different conclusion in the cases of Girkin, Dubinskiy and Kharchenko have come to light, so the court reiterates its finding that hearing the claims of the injured parties does not impose any disproportionate burden on the criminal proceedings.

12.3

Leave to proceed in absentia

At the beginning of the trial of the accused Girkin, Dubinskiy and Kharchenko, the court granted leave (under criminal law) to proceed
in absentia under Article 280(1) DCCP. The court finds that its leave to proceed
in absentia also covers the claims of the injured parties. This is because the court finds that the (notification) formality laid down in Article 51g(2) DCCP has been fulfilled with respect to the claims of the injured parties. The Public Prosecution Service already referred to the possibilities open to injured parties in the (annexes to the) writ of summons. The prosecution has also done this on subsequent occasions. On 9 September 2021, for example, the prosecution included a similar notification in its request to the Russian Federation for legal assistance in the service of an act of summons at the last known addresses of Girkin and Dubinskiy, and in its request to Ukraine of the same date for legal assistance in the service of an act of summons at the last known address of Kharchenko.

Like counsel for the relatives, the court finds that separate leave (under civil-law) to proceed
in absentia is not required with respect to the claims of the injured parties. After all, the Dutch Code of Criminal Procedure has its own notification formalities, so the application of civil law formalities by analogy is not appropriate. Nor does the legislative history provide any basis for such application by analogy.

In its clarification ruling on the injured party claims of 28 May 2019 ^[210] , the Netherlands Supreme Court ruled that, among other things, Section 139 of the Dutch Code of Civil Procedure (DCCivP) is of specific relevance when hearing an injured party’s claim, but the court understands this ruling of the Netherlands Supreme Court to mean that Section 139 DCCivP is of specific relevance only insofar as it provides a criterion for deciding whether an injured party's claim can be awarded through proceedings
in absentia , and, if so, specifically up to what amount it can be awarded (only insofar as the criminal court does not consider the claim ‘unlawful or unfounded’), but not to deem that the time periods and formalities for service under civil law laid down in Sections 45-66 DCCivP referred to in that section apply mutatis mutandis.

Finally, it is also important to note that proceedings
in absentia do not violate the right to a fair trial enshrined in Article 6 ECHR. The court must assume that the accused who did not appear have knowingly refrained from taking part in these legal proceedings, even though - if they specifically did not wish to appear themselves - they could have been represented by counsel, as was defendant Pulatov. This has also been communicated to them, as evidenced by the acts of summons just referred to, for example.

12.4

International jurisdiction, applicable law and standing under Section 51f DCCP

12.4.1

International jurisdiction

Previously, in addressing the preliminary matters, the court held that Dutch criminal law is applicable to the criminal cases against the accused under Articles 5 and 8b(1) DCC. In that context, it was also found that the accused are not entitled to invoke combatant immunity under international law.

Since the criminal case against the accused is therefore being conducted according to the provisions of Dutch criminal law, Section 51f, DCCP also applies in this case; in short, this section allows the injured party to join its (civil) claim to the criminal proceedings.

The question arises whether the applicability of Dutch criminal law also gives the court (international) jurisdiction to hear and rule on the relatives’ civil claims. Indeed, this cannot directly be assumed to be the case. If the relatives had submitted their claim to a Dutch
civil court, that court would have had to decline jurisdiction, as the expert for counsel for the relatives has also acknowledged. Indeed, in civil disputes, the international law norm - that the court of the defendant’s domicile has jurisdiction in principle (subject to exceptions) - applies. Therefore the question is whether the jurisdiction of this court - which, after all, is not the court of the domicile of the accused - to hear the civil claims is generally acceptable by the standards of international law. The importance of this question lies in the following. If the claims for compensation to be awarded in this judgment are to be enforced abroad (for example, if there is property there for which recourse is available), the local court will most likely ask the same question when deciding whether to allow this. An affirmative answer to this question will most likely be the condition (or one of the conditions) set by that court for granting any such permission.

The court agrees with counsel for the relatives and the prosecution that the said (international) jurisdiction arises from the applicability of Dutch criminal law, and in particular the provisions of Section 51f DCCP. The decisive consideration here is that this jurisdiction must be considered generally acceptable by the standards of international law. The question is not whether this is the case in the countries concerned, but whether it is generally accepted internationally. To support its finding that such general international acceptance exists, the court points to the provisions of Article 7(3) of Regulation (EU) No. 1215/2012 of the European Parliament and the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of decisions in civil and commercial cases (Brussels I bis) and Article 5(4) of the predecessor to that Regulation (Brussels I), which was still applicable on 17 July 2014, both of which read as follows:
"A person domiciled in the territory of a Member State may be sued in another Member State: [...] as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seized of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings." On the basis of these provisions, the court infers that, outside the Netherlands also, jurisdiction over a criminal case confers jurisdiction with respect to the civil claims of injured parties (if, as is the case in the Netherlands, domestic law allows for joinder of civil claims in criminal proceedings) and that this basis for jurisdiction is therefore generally acceptable by international standards. Incidentally, this principle does not apply only within the EU. Under the Lugano Conventions ^[211] , the same principle also applies in a number of non-EU countries, including Switzerland.

Civil proceedings before other courts?

Prior to this criminal case, a number of relatives who filed an injured party's claim filed a civil suit against (Malaysia Airlines and) Girkin in the United States District Court in the Northern District of Illinois. ^[212] By means of now final judgments by default on 20 December 2017 and 18 July 2018, the claims for compensation for material and moral damage were partially granted and an amount was awarded in
punitive damages .

Since these American judgments were made before the claims of the injured parties were filed in this criminal case, there is no question of
lis pendens ^[213] . Indeed, there are no other legal proceedings pending between the relatives and the accused Girkin in other countries concurrent with the present case. Furthermore, as will be shown below, neither does the court reach any contrary opinion. Since the accused Girkin did not further invoke any exclusive effect from the American judgments that would require the court to refrain from a (partially overlapping) ruling - Dutch civil procedural law incorporates
res judicata from earlier judgments in this respect - the American judgments play no role in the considerations of this court for that reason alone. One exception to the latter is the self-evident fact that the relatives concerned obviously may not seek to recover damages for the same harm twice (under both this judgment and the American judgments) from any assets belonging to the accused Girkin. That is an enforcement issue, however.

The court has found no other relevant legal proceedings between relatives who have filed claims in this criminal case on the one hand and the accused on the other, with respect to MH17. On behalf of the relatives, counsel for the relatives has also stated that there are no such other legal proceedings.

The considerations outlined above lead to the conclusion that this court has jurisdiction to hear and rule on the claims of the injured parties.

12.4.2

The law applicable to the claims

The question that must now be answered is under which (substantive) civil law the claims should be assessed. The court agrees with counsel for the relatives and the prosecution that this should be done under Ukrainian civil law.

The question of which law is applicable to the claims of the injured parties (regarding unlawful acts) should be answered on the basis of the provisions of the so-called Rome II Regulation. ^[214] With effect from 11 January 2009, the Rome II Regulation is applicable in all EU Member States (except Denmark), and therefore also in the Netherlands. Rome II has a universal formal scope, meaning that it also applies to cases brought before Dutch courts involving an unlawful act that was committed outside the EU.

Article 4(1) Rome II provides the general rule for determining the law that is applicable: the law applicable to an unlawful act is the law of the country in which the harm occurs
(lex loci damni ), regardless of the country in which the event that gave rise to that harm occurs, and regardless of the countries in which the indirect consequences of that event occur. In the case of MH17, this general rule points to Ukrainian law. Indeed, the death of the victims should be considered in law as direct harm arising from the unlawful act. By contrast, the extraordinary distress that these deaths caused to the relatives in particular, and the moral damage caused as a result, must be viewed as the
"indirect consequences of the event." The court derives this from the (authoritative) ruling of the Court of Justice of the EU of 10 December 2015 (C-350/14, ECLI:EU:C:2015:802), which states that Article 4(1), Rome II
“must be interpreted as meaning that the damage arising from the death of a person in such an accident, which occurred in the Member State of the court seized, sustained by close relatives of the deceased who reside in another Member State, must be regarded as ‘damage’ or as ‘indirect consequences’ of that accident, within the meaning of that provision.”

The court has considered whether an alternative to the general rule could apply in this case, so that the court could apply the Dutch civil law that it usually applies, for example. More specifically, the court considered whether the alternative set out in Article 4(3) Rome II may be applicable:
“Where it is clear from all the circumstances of the case that the unlawful act is manifestly more closely connected with a country other than that indicated on the basis of the general rule, the law of that other country shall apply.” It follows from this that this alternative could only be applied if there were not only a close connection with the Netherlands, but also that that connection was also clearly stronger than the connection with Ukraine. In other words, there must be a closer connection.

It is true that the vast majority of the victims were Dutch nationals and that flight MH17 took off from Schiphol Airport; however, that, in the court's view, does not establish a closer connection. The court agrees with (the experts of) counsel for the relatives that there is namely also a clear connection to Ukraine. Indeed, the location of the crash - unlike, for example, a crash that occurs due to a technical defect - was not accidental or random, but was directly related to the armed conflict occurring on Ukrainian territory. Furthermore, any potential connection to the jurisdiction of Dutch courts is by definition not relevant, or at least to a significantly lesser degree, with respect to the claims of non-Dutch relatives or non-Dutch victims. This is important because a closer connection must be established with respect to each individual claim, including when settling claims in disasters such as MH17. ^[215] Therefore, even if a closer connection could be established with respect to the Dutch relatives, this would not automatically apply to the non-Dutch relatives and the claims of the latter would still have to be assessed under Ukrainian law, possibly leading to different outcomes than under Dutch law. Applying Ukrainian law to all claims thus serves the internal coherence of the decisions made in relation to this case.

12.4.3

Section 51f DCCP

The court agrees with counsel for the relatives and the prosecution that Section 51f DCCP does not preclude the injured parties from having standing with respect to claims that include a significant component of emotional damages.

Section 51f(2) DCCP (old) refers to Section 6:108(1 & 2) of the Dutch Civil Code (DCivC), as it applied on 17 July 2014. That section states, in brief, that the relatives can (only) claim for lost earnings and for cost of recovery of the body, from the liable party. Under
Dutch civil law, unlike Ukrainian civil law, the relatives were not entitled to compensation for emotional damage in 2014. A subsequent amendment to the aforementioned Section 6:108 DCivC (with the addition, among other things, of (new) third and fourth paragraphs) changed this: now, under Dutch civil law, the relatives of persons who died on or after 1 January 2019, are entitled to compensation for emotional damage.

In the context of the amendment of Section 6:108 DCivC, Section 51f DCCP was also amended. In brief, that paragraph has been expanded to include a reference to claims for emotional damages by relatives.

Regarding the transitional law that applies with respect to these new paragraphs, the parliamentary documents include the following, insofar as these are relevant:

“A distinction must be made between claims for compensation for emotional damage [and] the expansion of the possibility of joinder in criminal proceedings [...] Claims for compensation for emotional damage are new in the DCivC. When this bill becomes law, no claim will arise if the offences required by the new law for this purpose took place before the enactment of this legislation (see Article 69(d) of the Transition Act concerning the New DCivC). This provision provides legal certainty: the perpetrator will not be confronted with new claims [...]. In expanding the possibility of joinder in criminal proceedings, a distinction is made between claims for compensation for emotional damage and claims for compensation for transferred loss. Claims pertaining to emotional damage arise after the new law comes into force. Only then can a relative join criminal proceedings in respect of such claims. No separate provisions of transitional law for criminal proceedings are necessary. Unlike claims for compensation for emotional damage, the possibility for claims for compensation for transferred loss exists already under the current DCivC. No special transitional legal provisions have been made concerning the possibility for relatives to join proceedings with respect to these claims. This means that this part of the new law will take immediate effect. A third party will be able to join criminal proceedings already pending when the new law comes into effect with respect to claims for transferred loss.” ^[216]

The starting point for the court is that Section 51f DCCP regulates which persons may file which types of claims in criminal proceedings. The court agrees with the interpretation of counsel for the relatives regarding the immediate entry into force of Section 51f(2) DCCP, and that the lawmakers intended to expand the number of types of damages for which relatives can claim in criminal proceedings to include emotional damage and so-called transferred loss (not otherwise relevant in this case), and to do so with effect from 1 January 2019.

As the passage cited from the parliamentary documents makes clear, the lawmakers apparently made an unconscious assumption that Dutch civil law (always) applies to those claims. This is understandable, because it is very rare for foreign civil law to be applied in criminal proceedings. As discussed above, under Dutch civil law, a relative is only entitled to compensation for emotional damage if the death of the relative occurred on or after 1 January 2019. Unsurprisingly, the parliamentary documents referred to take as their premise that such claims for emotional damages can only be filed in criminal proceedings if the relevant claim arose on or after 1 January 2019. Indeed, a direct link is made between the date from which such a claim can arise and the possibility of joinder in the criminal proceedings; in other words, a manifestly non-existent claim (because the law had not yet made any provision for it) cannot be admitted in criminal proceedings. However, it cannot be inferred from the parliamentary documents that the lawmakers also intended to prevent claims for emotional damages that arose before 1 January 2019 based on the applicability of foreign civil law from being filed in criminal proceedings on or after 1 January 2019. Nor is it likely that this was the intention of the lawmakers, given their approach to transferred loss: lawmakers saw no issue with claims for transferred loss that arose before 1 January 2019 being filed in criminal proceedings on or after 1 January 2019. Furthermore, the admissibility of claims for emotional damages in this case is not at odds with the legal certainty intended in the aforementioned quotation from the parliamentary history – quite the contrary, because the right of relatives to emotional damages already existed under the applicable Ukrainian law on 17 July 2014.

The prosecution takes the position that admissibility can only be assumed under the first paragraph of Section 51f DCCP, and not the second paragraph. The prosecution believes that paragraph 2.4.7 of the Netherlands Supreme Court’s aforementioned clarification ruling regarding injured party’s claims (
"With regard to the transitional law, it is clear from the legislative history that this expansion only has an impact with respect to events causing harm that take place after the entry into force of this legislative amendment on 1 January 2019.") precludes admissibility under the terms of the second paragraph. In this clarification ruling, however, “this expansion” refers back to the extension of Dutch civil law mentioned in the preceding paragraph 2.4.6, and not to the expansion of the possibility of claiming for emotional damages in criminal proceedings under Section 51f(2) DCCP.

Finally, the court, unlike the prosecution, finds that admissibility cannot be based on the first paragraph of Section 51f DCCP. If relatives (even before 1 January 2019) could base the admissibility of their claim for emotional damages as ‘direct damages’ on the first paragraph, it is hard to see what the function of the second paragraph is (or was), and why this second paragraph was amended even more recently with the aim of making such claims possible in criminal proceedings. The court holds that the first paragraph of Section 51f DCCP governs the possibilities for joinder for direct victims and that the second paragraph of the section governs the possibilities for (indirectly-affected) relatives. The Netherlands Supreme Court’s ruling that so-called nervous-shock claims can be brought in criminal proceedings on the basis of the first paragraph ^[217] therefore also makes sense in this regard; a person who has suffered a nervous-shock injury has (also) suffered directly on account of being directly confronted with, for example, a shocking criminal offence with fatal consequences, and therefore does not claim these damages on the (sole) ground that he or she is a relative. Therefore, the court, unlike the prosecution, sees no reason to deem claims for emotional damages also admissible under the terms of the first paragraph of Section 51f DCCP, by analogy with the aforementioned opinion of the Netherlands Supreme Court regarding nervous shock injury. Independently, of course, it may be the case that the injured parties’ claims in this case are also partially admissible under paragraph 1, insofar as they include an element of nervous shock injury (compare Netherlands Supreme Court, 28 June 2022, ECLI:NL:HR:2022:958).

The court has also looked into whether the two relatives who filed claims for material damages, but not through counsel for the relatives, have standing. To the extent that those relatives filed the claim concerning their deceased daughter’s lost laptop computer in their capacity as heirs, the court is obliged to declare that these relatives do not have standing with respect to that claim, as it appears from the report by DLA Piper that under Ukrainian law (Section 1177 UkCivC) claims for damages cannot be inherited. However, even if these injured parties who filed the claim in the capacity of relatives, the court is of the opinion that - as will become clear below under the heading ‘Damages’ - Ukrainian law does not offer any possibility to relatives for compensation for that type of material harm, meaning that the injured parties do not have standing for that part of their claim for that reason either. For the same reasons, the latter also applies to the request for an order for the return of the laptop filed in the alternative.

The injured parties do have standing with respect to the rest of their material-damage claim, which pertains to the travel costs to the crash site as part of the costs for their ‘private funeral’, since this damage falls under Section 51f(2) DCCP and Ukrainian law provides relatives with the possibility of claiming for ‘burial (ritual) costs’.

12.5

Assessment of the claims on their merits

12.5.1

Right to compensation for damage under Ukrainian law

Counsel for the relatives filed several legal expert opinions in the case, addressing the question of when compensation for damage can be claimed under Ukrainian civil law. It has neither been asserted, nor is there any evidence, that there is any reason to doubt the expertise of the authors of those reports and therefore their content. The court also notes that the content has not been refuted. The content of those reports therefore forms the basis for the court’s deliberations.

From these expert reports, the court infers that, under Ukrainian civil law, a right to compensation for damage exists if there is harm, an unlawful act, a causal relationship between the unlawful act and the harm and, finally, culpability. The unlawful act may consist of a (proven) criminal offence (see Section 1177(1) of the Ukrainian Civil Code (UkCivC)). A criminal conviction can serve as the basis for a decision under civil law on unlawfulness and culpability. Another feature of Ukrainian civil law is so-called joint and several liability: in short, the possibility for several persons (convicted under criminal law) to be held liable for the same total damages (see Sections 541 and 543 UkCivC). Group liability within the meaning of Section 1190 of the UkCivC arises from, and is limited to, the extent of the common intent. Furthermore, the harm must have been caused in association. This is the case when each respondent has performed at least one act, these acts being connected (they need not be performed simultaneously). In this regard, Ukrainian legal practice assumes the following: “
Persons whose actions were united by a common criminal intent, and the damage caused by them as a result of their joint actions, are jointly and severally liable for damages. When a crime is committed by several persons, they are jointly and severally liable for the damage inflicted within the episodes of the crime in which their joint participation has been established. ” ^[218]

(Joint) unlawful/criminal negligence can also constitute grounds for (group) liability.

Since the accused Girkin, Dubinskiy and Kharchenko will be sentenced as (functional) co-perpetrators of the acts that caused harm, both unlawfulness and culpability under Ukrainian civil law are given. There is no doubt that the unlawful act carried out by the accused is causally related to the material and moral damages claimed by the relatives. Therefore, it only remains for the court to consider whether the nature and extent of the damages claimed are allowable under Ukrainian law.

12.5.2

Damages

Regarding the material damages that have been claimed, the court notes that, under Ukrainian law, relatives can claim pecuniary damages, consisting of “burial (ritual) costs and future income”.

Pursuant to Sections 23(2) and 1167 UkCivC, it is also possible under Ukrainian civil law to claim compensation for moral damage caused to relatives. This involves compensation for “emotional distress suffered in connection with unlawful behaviour against members of his/her family or close relatives”, also referred to as “mental suffering and distress”.

Eligibility of claimants

The relatives entitled to compensation for moral damage are the spouses, registered partners, parents/adoptive parents and children/adoptive children of the deceased, as well as persons (including stepchildren) with whom the deceased cohabited, shared a common household and had reciprocal rights and obligations.

Same-sex partners

The expert reports presented by counsel for the relatives show that under Ukrainian law, unlike opposite-sex partners and spouses, same-sex partners and spouses are excluded from claiming moral damages in connection with the death of a partner. Ukrainian law does not consider that same-sex married partners fall within the category of spouse. Unlike opposite-sex cohabiting partners, neither can same-sex cohabiting partners and spouses claim such compensation on the grounds of maintaining a shared household.

One of the relatives who filed a claim was married to and cohabiting with a victim of the same sex before the disaster. Regarding this claim, pursuant to Article 26 Rome II the court decides that the exclusion under Ukrainian law mentioned above will not be applied, as this conflicts with Dutch public policy. Indeed, the exclusion violates Article 1 of Protocol No. 12 of the ECHR (General prohibition of discrimination) as regards the fact that it is impossible for this relative to claim moral damages on the basis of a shared household. ^[219] Although this article does not create an obligation to make marriage available to same-sex partners, it does create an obligation not to make unjustified distinctions between same-sex and opposite-sex partners and spouses. The court will therefore not exclude the relative in question, but rather, as would be the case under Dutch law, the court will treat the relative in the same way as those who lost a spouse of the opposite sex.

Siblings

In Ukrainian civil law, just as in Dutch civil law, siblings who did not live with the deceased (on a long-term basis) are not entitled to compensation. For this reason, counsel for the relatives filed no such claims in this criminal case. At the hearings, the court observed that many siblings were greatly pained by their ineligibility to claim compensation and felt this to be very unjust. Counsel for the relatives referred to the fact that scientific research conducted in the months following the MH17 disaster showed that there was no difference between the severity of psychosocial complaints experienced by siblings and those experienced by, for example, parents and children. It is also a fact – and the victim impact statements made this very clear at trial – that the lives of siblings were radically changed by the disaster. These changes were caused not only by grief over the loss of their sibling, but also by their new or more intensive role – obviously taken on with love but also of necessity – in caring for their sibling’s children or caring for their own parents since the disaster. This new or more intensive role also means they are even more intensely confronted with the grief of these children and parents. The siblings have requested that the court bring their position as outlined above and, as the court understands it, their position under Dutch law in particular, to the attention of Dutch lawmakers in this judgment. The court supports the call from the relatives that the position of siblings who did not live, or no longer lived, with the victim be explicitly taken into account in the anticipated evaluation of the law regarding emotional damages, in view of the fact that the hardship clause included in that law will only provide relief to this category of relatives in a small number of cases. ^[220]

Factors in estimating damages

The following circumstances should always be taken into account when estimating moral damages under Ukrainian law:

• the nature of the unlawful act;
• the severity of the physical and emotional distress;
• the extent and duration of the negative effects of that distress;
• the degree of guilt of the person(s) who caused the harm;
• the impact on the health of the immediate victim of the unlawful act (with death of a victim falling into the highest category of severity); and
• the severity of the changes imposed on daily life and employment relationships.

Taken in the round, moral damages should be estimated based on all circumstances and on the principles of reasonableness, balance and fairness. Neither the country of residence of the victim or relative nor his or her nationality play any role in the estimation of material or moral damages.

The court has taken note of the statements made by the injured parties when exercising their right to address the court and also of the statements made by injured parties in the form of a written victim impact statement. Together with his co-perpetrators, the accused bears responsibility for abruptly ending the lives of 298 victims, and in doing so he has caused irreversible and irreparable distress to the relatives of those victims.

These statements made clear to the court the role the victims played in their family, in their extended family, in their neighbourhood, at school or at the gym, at work or in their circle of friends. They also showed how terribly the victims are still missed in the lives of those left behind. The content of those statements, and the frank and personal way in which they were made or written, made a deep impression on the court. When considering the matter below, it is impossible for the court to do full justice to the many facets of the distress explained and described by the injured parties. By way of illustration – and without wishing to detract from the content of other spoken or written statements made when exercising the right to address the court – the court will quote from statements made by some injured parties. ^[221]

Based on the commentaries in their claims for compensation, the court finds that the injured parties suffered direct moral damages as a result of the actions of the accused. The relevant claims have been sufficiently substantiated. Based on that substantiation, the court infers the following.

Regarding the nature and substance of the moral damage suffered

On 17 July 2014, the injured parties were suddenly confronted with the death of their loved ones as a result of the flight MH17 disaster. After initial uncertainty as to whether their loved ones were indeed on board this flight and, if so, whether they had survived the crash, within days it became definitively clear to the injured parties that all 298 people on board had died as a result of the downing of flight MH17. It is unbearable for the injured parties that they must live with lingering uncertainty about what took place in the final moments on the aeroplane and to what extent their loved ones were aware of their fate.

It is the court’s opinion that it goes without saying that the death of the victims in this sudden and terrible way in itself caused intense grief and was traumatic for the injured parties. The death of a member of their family is something that affects the injured parties every day and is something which they must learn to live. This is evident, for example, in the following descriptions:

An injured party who lost his three young daughters (aged seven, ten and twelve at the time of the disaster) described the following, among other things, when exercising his right to address the court (excerpt):

"(...) On 17 July 2014, my daughters disappeared from my life forever. Ripped from my life, with no goodbye, no hug, no warning. (...) Father's Day is a horrible day for me. Before the crash, my daughters would always give me lovely gifts. And breakfast in bed. And three big hugs and kisses (...) But I am a father without children. A childless father. Father's Day has become one of the most terrible days of the year. For seven years now. And for every year to come. (...) As I said before, since the disaster my life has stood still. I no longer have a future with my daughters. Only memories of my daughters. (...)"

An injured party who lost her father wrote in her written victim impact statement:

“(…) And I use the word “would’ve” because my dad isn’t here and he’s not going to be there to watch me walk down the stage in a cap and gown. But the worst part of this story is the undeniable fact that my father should be here today and should be there when I graduate college. He didn’t die of natural causes like a health problem or because of an accident. He died because his plane was shot down, my father died because he was murdered. And because of that, he won’t be at my brother or I’s graduation, he won’t be at our weddings and he won’t be keeping my mom company into old age. Every single day, my family and I live through the question ‘What if he was still here?’ and I can’t even begin explaining to you how emotionally draining and painful that is. (…)”

Counsel for the relatives relayed that many of the injured parties suffer – to varying degrees – from persistent complex bereavement disorder (PCBD), post-traumatic stress disorder (PTSD) and/or depression. To substantiate the existence of psychological symptoms among the injured parties, counsel for the relatives referred to reports it filed regarding studies conducted into the psychological impact of the flight MH17 disaster on the relatives. These studies show that it is very likely that such symptoms significantly hamper the daily lives of those who suffer from them. Furthermore, individuals with PCBD are shown to be at increased risk of PTSD and depression following repeated confrontation with the trauma, for example due to constant media attention. The studies also show that having to bury or cremate a loved one’s remains multiple times can create a sense of unreality in relatives, as if the event never happened, even though they are well aware that their loved one is no longer alive. Researchers have referred to this as ‘a sense of unrealness’. This can perpetuate or even exacerbate PCBD. The court notes that reference is made to psychological symptoms in various statements made by the injured parties. In some cases, these symptoms have led or contributed to a full or partial incapacitation for work. This is evident, for example, in the following descriptions:

An injured party who lost her husband gave the following description of her psychological symptoms when she addressed the court (excerpt):

“(…) Losing my beloved husband (…) has shattered my very existence and has left me with a number of long-term psychological issues. (…) I’m scared of forming bonds and relationships with people for fear of something devastating happening to them. I am afraid of the world; knowing that evil and war can affect any of us at any time. (…) I now live with depression, anxiety and I have been formally diagnosed with post-traumatic stress disorder (PTSD). I am on a number of different medications for these conditions, but none of it helps. My head is never quiet. I no longer enjoy life experiences. I can’t even concentrate on reading a book. (…) Living with PTSD has stopped me from being able to work. (…) I am completely broken emotionally and psychologically. Simple things can trigger the trauma that I experience. My panic attacks can happen at any time without warning. Leaving the house fills me with dread. I don’t know who I might see or if I’ll encounter a situation that I can’t cope with. (…)”

When addressing the court, an injured party who lost her husband described her psychological symptoms as follows (excerpt):

“(…) My health has suffered enormously due to the ongoing stress, anxiety, depression, shock and lack of sleep. I still experience muscle aches, jaw and teeth grinding, headaches, skin rashes, and long-term cortisol effects to my body. At first, I lost weight but then gained a lot with the shock sending me into early menopause and that has played havoc with my hormones. I battle with feelings of fear, anger and guilt and I have been diagnosed with long-term grief and PTSD.

I’ve had many years of psychological and physical therapy to keep me moving but I find continuing with counselling difficult as no matter how much I talk about it; [court: victim’s name]
will not be coming back. I battle through the steps of grief, but anger overwhelms me as there just seems no reason or justification for this senseless act that has destroyed so many lives and futures. My doctor has kept a close eye on me, and I’ve tried to battle on without taking anti-depressants. I still suffer horrific nightmares where I repeatedly see [court: victim’s name]
flying out the window into the plane engine. (…)”

With regard to the existence of psychological symptoms among the injured parties, the court considers that, under Ukrainian law, medical substantiation is not a prerequisite for assuming emotional distress (moral damage).

Further, it is the opinion of the court in this case that there are other circumstances that should be considered when determining the amount of moral damages. According to the DLA Piper opinion filed by counsel for the relatives, those circumstances are in line with the factors that can be taken into account under Ukrainian law when determining moral damages.

One circumstance concerns the inaccessibility of the disaster site, not only to injured parties wishing to visit the place where their loved ones had died, but also to emergency workers. Flight MH17 came down in a conflict zone and emergency workers were denied access to the disaster site in that zone. This seriously hampered efforts to recover the victims and their belongings. The bodies of the victims lay exposed in the fields, open to the elements, for days, and in some cases for weeks or even months. Given the size of the disaster area, it was a long time before the victims’ remains could be taken to a mortuary and identified. All this led to great uncertainty for the injured parties, who could do nothing but wait helplessly to see if their loved ones and their belongings would be recovered and then repatriated. Having to wait to hear whether a loved one had been found also delayed the grieving process.

Several statements made by injured parties also make plain that initially they were living with unimaginable uncertainty as to whether their loved ones would be recovered and, if so, whether the bodies were still intact. It was later found that in many cases only a single bone fragment or remains of some other type were recovered. This is evident, for example, in the following descriptions:

An injured party who lost his father described this when exercising his right to address the court:

"(...) The aftermath of this event and everything we had to deal with also seems endless and hard to comprehend: (...)

The news in September that 20% of the vast area had been searched and that people didn’t think it would be necessary to search the rest. They didn’t think it was likely that any more bodies and/or luggage would be there – That was painful to hear because Dad hadn’t been identified yet. (...)

The [Dutch day of] National Remembrance on 10 November – We’d been in limbo for months and we still hadn’t got my father back. (...)

The disappointing news in November was that there were no more viable DNA profiles in Hilversum. So it still hadn't been possible to identify Dad and it wasn’t clear when people could travel to the area again because winter was coming. (...)

That was six months later, but we were still living in total uncertainty. Uncertainty about whether my father would be found. Uncertainty about exactly what had happened. January 2015, the news that set us free: my father had been identified. We were able to make preparations for his memorial. That was scheduled for Friday 24 April 2015. (...)"

An injured party who lost his parents said the following when exercising his right to address the court:

“(…) The police had a number of inhumane conversations with us, regarding the next steps and things that you would think you would never have to consider. Firstly, the identification of the bodies - matching enough DNA to make sure that they have identified the right person. Asking whether we wanted to be notified whether they had just identified only one parent, knowing full well that the trauma of this event it was a strong possibility that they might not identify them at all. Telling us that there was a possibility that our parents won’t be fully intact, meaning they might only identify a body party, an arm or a leg. Conversations that you never want to hear about your parents, the people that you love, the people that loved you. I will never forget those conversations and how talking about the trauma of your parents’ bodies just became the new normal and also trying not to think about the bodies lying all over a field in Ukraine. It was a long 5 weeks until they got identified and repatriated, the longest 5 weeks of my life. (…)”

An injured party who lost her father and his partner said this when exercising her right to address the court:

"(...) And then, one morning in late November 2014, I get home and there are family liaison officers sitting at my table. (...) And yes, they had the message I’d waited so long to hear. My father had been identified. From a two-centimetre piece of bone, from his hand. That was all. It felt crazy. They’d found my father, a man who was almost two metres tall, based on something so small. Still, I was happy for a moment. I did immediately wonder, and hope that [court: victim’s name]
would now be found quickly too. It wasn’t right that my father was here and [court: victim’s name]
was still there. They should be together. A few days later, [court: victim’s name]
was identified, from a small piece of bone. At least they’d both been found and, to my mind, they were both here. Over the next few months I got more phone calls as more pieces of my father were identified. (...)"

In fact, in the case of two victims – for whom relatives have come forward as injured parties – neither the bodies nor parts of them were ever recovered. It is also true that most of the remains that could be repatriated were unrecognisable and highly degraded, so that several injured parties were confronted with these remains when paying their last respects to their loved ones. Some of the remains were so degraded that it was no longer even possible to pay those last respects. This formed a barrier to the coping process.

In the same vein, the court also points out that, for several injured parties, more remains of their loved ones continued to be found over a period of time, so that they were process repeatedly confronted with these remains and – in some cases for those who so wished – another cremation, funeral or burial in a grave had to be arranged.

An injured party who lost several loved ones said the following in his written victim impact statement:

"(...) We suffered intense aftershocks as we received identification messages about all four children 16 times over a 19-month period That means the police tell you 16 times that the children, son, daughter-in-law and two grandchildren had died in the disaster, because remains of them had been found. Indescribably gruesome to hear that all together 220 little bits of all 4 children had been found in 16 times. (...)"

An injured party who lost his son said the following when exercising his right to address the court:

“(…) A week after the downing of the MH17, I was summoned to the police station (…) to provide DNA samples so that the authorities could identify his remains. He was the first victim to be identified because his passport was found intact in one of his trousers’ pockets. His funeral was on the 7th August, 2014, and we were advised not to view his body before we buried him, because it was badly damaged. Weeks and months later, we were still being visited by the police (family detectives/Rechercheurs), to inform us about various items of his luggage, and parts of his remains that were still being found or identified by DNA analysis. This felt like a never-ending story of pain and emotional suffering. It was like re-living, the horrible trauma, of his death once more, whenever these visits took place. (…)”

Another aspect concerns the fact that, from the very beginning, the injured parties were confronted with intense and continuous media coverage of the flight MH17 disaster. It was almost impossible to escape news coverage of the disaster, some of it contradictory, accompanied by shocking photos or video footage of parts of the burning wreckage, the deceased victims and victims’ possessions scattered around the area where pieces of flight MH17 came down. They also found it hard to ignore photographs and posts on social media. Moreover, some relatives were approached by media organisations – either online or through people who knew them – with requests to tell their stories. All this meant, and continues to mean, that relatives were faced with the disaster and its consequences time and again. This is evident, for example, in the following descriptions:

An injured party who lost his father describes the following in his written victim impact statement:

"(...) l formed a picture in my mind of the event and how my father felt on the plane and at the moment the plane hit the ground. I made that picture based on what I saw on television. I found the images extremely traumatising. (...) I don’t want to be constantly confronted with MH17 and the death of my father without warning. That’s not really possible (...) The images are still in my head and when I’m confronted with MH17 they appear more intensely. (...) I’ve had help from a psychotherapist for the traumatising images, as well as for other things. (...)"

An injured party who lost his daughter, two grandchildren and son-in-law describes the following in his written victim impact statement:

"(...) It’s really bad that television coverage of MH17 always includes pictures of the field where the victims came down. Then I’m upset again for days. And I get dreams, where I see them falling. (...)"

An injured party who lost her parents describes the following in her written victim impact statement:

"(...) My loss has become public property. I get asked all the time on social media to do an interview. I’ve run out of fingers to count the requests. And it seems like my phone number is no longer private. That makes me think of the media as a nuisance. Why can't I decide for myself to go to the media? Why do they keep coming to me/us? Why can't my grief be my own and why should I have to share it? (...)"

Finally, the explanatory notes to the claims submitted by the injured parties also show that the accused’s stance in these proceedings increased the distress of the relatives. In addition to denying any involvement in the MH17 disaster, disclosing little and failing to cooperate with the investigation, they made negative statements regarding the MH17 disaster and circumstances surrounding the disaster on a number of occasions.

For example, Girkin called on the armed forces of the Donetsk People's Republic to

hand in the victims’ personal belongings to DNR headquarters by 23 July 2014 and said that valuables would be sent to the ‘DNR Defence Fund’. He further suggested that some of MH17’s passengers were already dead before the crash and blamed Ukraine for the downing of MH17. A number of suspects contributed to the suggestion that had been circulated that MH17 was first shot down by another aircraft, which the separatists then fired at. None of the defendants have distanced themselves from those manufactured alternative accounts of the flight MH17 disaster, nor have they done anything to disclose the true course of events that led to the victims’ deaths. All this has increased both the distress of the injured parties and their sense of injustice. The perpetrators have given no recognition to the injured parties, as they have not taken responsibility for the consequences of the disaster.

In summary, the court considers that – although they did not intend to kill these people – the deliberate actions of the accused and his co-perpetrators, as proven, resulted in the deaths of 298 victims, which is the most serious consequence of committing an unlawful act. The injured parties were suddenly faced with the death of one or more of their loved ones as a result of this action. As a result, they suffer – to a greater or lesser extent – from (serious) psychological symptoms. On the one hand, these symptoms are the result of the death of their loved one(s), and on the other they are caused by the other circumstances described above which have, among other things, exacerbated the distress and (psychological) disorders already inflicted. The court infers from the substantiation provided that the injured parties have been facing these consequences since 17 July 2014, and that for many the consequences remain undiminished to this day. Some aspects may have faded somewhat into the background, and now, in 2022, some injured parties will be further along the path to recovery than others, but on balance it can be concluded that the injured parties – all of whom to a certain extent faced the same circumstances after the flight MH17 disaster – still experience all or some of the grave negative effects described above. They will all have to live with a painful loss and the effects of that loss.

Regarding the determination of the amount of compensation for moral damage

First of all, the court notes that the distress described by the injured parties cannot in any way be expressed in monetary terms, but that the court is obliged to do so.

Counsel for the relatives have stated and substantiated the harm suffered by the injured parties, as also evidenced above. With respect to the (psychological) damages claimed, counsel for the relatives has chosen fixed, lump-sum amounts for each deceased loved one, with the amounts varying according to the family relationship and connection to the victim. According to the submissions made by counsel for the relatives, it would be justifiable to award higher amounts to the spouse, life partner or parent of a victim, as well as to children who lived with a victim as a family group. Counsel for the relatives has argued that, in the case of these relatives, such a close relationship may be assumed that a higher amount is appropriate compared to the amount for other relatives who are part of the group of rightful claimants. The choice was made to divide relatives into three categories; the persons in:

-
Category I (spouses/registered partners ^[222] and life partners, children ^[223] and parents or guardians ^[224] who were living with the victim on 17 July 2014) claim €50,000;

-
Category II (non-cohabiting children ^[225] or parents ^[226] ) claim a sum of €45,000;

-
Category III (sibling ^[227] , grandparent or grandchild, aunt or uncle, nephew or niece and family-in-law living as a family on 17 July 2014) claim a sum of €40,000.

The court notes that these alleged damages have not been disputed by or on behalf of the accused Girkin, Dubinskiy or Kharchenko. In view of this, the court need only assess whether the claims can be awarded in their entirety or whether they appear to the court to be unlawful or unfounded.

For that assessment – as discussed above – the relevant comparison when it comes to awarding moral damages is with Ukrainian law and thus Ukrainian practice. For this reason, the court does not concur with the prosecution’s argument that the Dutch Emotional Damage Compensation Decree should form the basis for assessing the moral damages claimed and then, based on the special circumstances, that the amounts mentioned therein should be increased to between €30,000 and €40,000, and thus that a lower amount of damages should be awarded than has been claimed. However, the court considers that, apart from the fact that the Dutch principles aim to provide compensation for a narrower concept of damage than the moral damage specified under Ukrainian law, the court sees no reason to seek alignment with Dutch principles when the application of Ukrainian law calls for alignment with Ukrainian practice instead.

Counsel for the relatives referred to several Ukrainian rulings which involved the death of loved ones as the consequence of a criminal offence and in which the relatives were awarded an amount as compensation for moral damage with respect to those circumstances. The court did not find in these rulings any compelling basis for determining the amount of moral damages to be compensated, but the rulings do show that survivors were awarded an amount of moral damages ranging from over €37,000 to over €109,000 in each case.

In view of this practice and the serious consequences for the injured parties described above, as well as the other special circumstances also described above, that must be taken into account when determining the amount of moral damages – which the accused could have foreseen – the amounts claimed do not appear to the court to be in any way unlawful or unfounded, as the amounts claimed provide for reasonable, balanced and fair compensation as defined in Ukrainian civil law.

The court has taken into account the fact that not all elements of the distress described above are equally relevant to all injured parties, but the court nevertheless finds that the distress of each injured party justifies the amount to be awarded. Even in those cases where it cannot be ascertained from the individual commentaries and in which, for example, no victim impact statement is available, the serious consequences for the injured parties are obvious and justify awarding of the claim. Therefore, the court finds that the claims can be awarded in their entirety.

This means that, for the three categories of injured parties (relatives) mentioned above, the court considers the following sums to be allowable:

• the persons in
• the persons in
• the persons in

12.5.3

Discussion of certain individual claims

12.5.3.1 Preamble

As the claims are henceforth only before the court in the cases of the accused tried
in absentia , who have not contested them or their substantiation, the court will conduct a limited assessment of whether the claims are indeed lawful and have merit and will only assess whether the party submitting the claim has adequately substantiated that he or she falls in one of the categories of rightful claimants and therefore has standing. To this end, in practical terms, the court requires
prima facie evidence of kinship and – where applicable – cohabitation with the deceased person in connection with whom moral damages are claimed. The court sees justification for this limited
ex officio assessment, despite the absence of any response from the accused, in the fact that this is a matter of admissibility. Insofar as evidence does not relate to the standing of the injured party but rather, for example, to the amount of the compensation claimed (i.e., not whether the injured party belongs to the group of rightful claimants, but rather to which category (I, II or III) used by counsel for the relatives), the court will rely on what has been asserted in this respect by the injured party and not refuted by the accused, unless the contrary is manifestly apparent from the evidence provided. In so doing, the court is conducting the assessment for
in absentia cases laid down in Section 139 DCCivP, which, pursuant to previously cited case law, also applies when assessing claims by injured parties in criminal cases.

On that basis and further, the assessment conducted by the court is based on the following premises:

• minor children are considered to live with (each of) their parents, even if the parents are divorced;
• to the extent that cohabitation is relevant to standing, the court assumes such cohabitation if records supplied with respect to the months preceding or following 17 July 2014 show the same address.

Subject to the above, based on the documents provided by counsel for the relatives, for the vast majority of relatives it can be established without question that they are rightful claimants as relatives in the categories set out above. These claims therefore require no further discussion and will be awarded as claimed.

Certain individual cases still require some separate discussion, as there is room for doubt regarding standing of an injured party. ^[228] Furthermore, the claims of two injured parties who did not file their claims through counsel for the relatives require further discussion. This is due to the fact that, unlike the injured parties who filed their claims through counsel for the relatives, these parties are also claiming material damages.

12.5.3.2 Claims by injured parties not filed through counsel for the relatives

First, the two claims not filed by counsel for the relatives and which also seek compensation for material damage will be discussed separately. Specifically, these concern compensation (to the extent still relevant, since it has now been established that the injured parties do not have standing with respect to their claim concerning the laptop) for:

• material damage/transferred loss (each to receive half) of €12,473.16 (various expenses incurred, including travel and accommodation costs related to a visit to the crash site in Ukraine and telephone costs);
• their immaterial damage/moral damage: a total of €40,000;
• their total emotional loss: a total of €40,000.

The injured parties explained that they each suffered half of the material damages claimed and each claim €40,000 in moral damages.

The court notes at the outset that the injured parties should each have filed a written criminal injuries compensation form separately, but that the written commentary provided by the injured parties indicates that, in summary, such a filing was too emotionally taxing. In view of this, and in view of what was stated in the introductory comments above, the court views the criminal injuries compensation form submitted as two submitted claims, whereby each injured party has submitted a claim for compensation of €46,236.58, consisting of €6,236.58 in material damages and € 40,000 in moral damages.

As stated earlier, the court finds that, under Ukrainian law, the injured parties fall within the group of persons entitled to claim compensation.

In this particular case, the court considers that the travel and lodging expenses claimed for visiting the crash site (by way of a ‘private funeral’) are for ‘burial (ritual) costs’ which are allowable under Ukrainian law. This part of the claim will be awarded, as the court also considers that this part of the claim does not appear to be unfounded or unlawful. In addition, many other relatives have indicated that they would have liked to travel to the site of the MH17 crash, but that this was not possible given the security situation there, and that this factor has made the grieving process more difficult for them. This circumstance therefore constitutes a component of the moral damages which they have claimed. These two relatives were apparently able to make the trip. The court can easily envisage that they wished to make that journey as part of the grieving process, as a way to pay their last respects. The fact that these relatives are claiming a lower amount of moral damages than the other relatives may be a reflection of the fact that this visit actually helped them and, as such, alleviated their distress.

The court considered the ‘factors in estimating damages’ set out above in estimating the amount for moral damages claimed and found the claims to be allowable in full.

Accordingly, these claims will be awarded in each case at the sum of €46,236.58.

12.5.3.3 Individual claims filed by counsel for the relatives

Next, the court discusses certain individual claims filed by counsel for the relatives (and which thus concern moral damages only).

The claim of injured party A2.57

The court notes that, although the evidence submitted does not show that the injured party was registered at the same address as the deceased victim (her grandson) or his family either on or shortly before 17 July 2014, the statements submitted do show that she lived with that family for an average of eight months per year. The documents also show that she not only lived with the family for most of the year, but was also significantly involved in the family’s daily life and also contributed financially. It is the court’s view that these circumstances, especially as they have not been disputed, can be characterised as cohabitation for the purpose of assessing the admissibility of this claim. Unlike the prosecution, the court considers that the injured party is entitled to compensation in line with the amount established above for persons in Category III.

The claim of injured party A5.36

The court finds that the injured party has filed sufficient evidence in these proceedings to show that the deceased was his stepfather. The court views the certificate of marriage of his biological parents, as well as his proof of identity which sufficiently shows that he is indeed a son of the aforementioned biological father as their surnames match, as
prima facie evidence of the biological connection between him and his mother. The certificate of his mother’s marriage to the deceased, combined with his being a minor child on 17 July 2014, constitutes
prima facie evidence that he lived with the deceased, his stepfather. The court considers this to be sufficient substantiation in the absence of dispute. In the case of this injured party, compensation will therefore be awarded under Category I.

12.5.4

Third-party payments

The court has considered the question of how to deal with payments from third parties to relatives who have filed a claim. These include payments from insurance companies and payments to relatives made by the airline, Malaysia Airlines (MAS), or by the Malaysian company Petroliam Nasional Berhad (Petronas). The answer to this question could be relevant for estimating damages: if damage has already been compensated in full or in part by a third party, is it justified to award the same compensation again at the expense of the accused? Reasoning further, if, for example, an insurance company has already paid out all or part of the compensation claimed to the relatives, is it not possible that the insurer may recover the sum of the payment from the accused? In the latter case, if the accused also had to pay compensation directly to relatives on the basis of this judgment, they would have been sued twice for the same damage.

The court therefore requested that counsel for the relatives clarify the amount and nature of payments made by third parties to the relatives who have filed a claim and, more specifically, to clarify payments that relate to compensation for moral damages. Counsel for the relatives provided this clarification and explained why, according to the relatives, these payments should not affect the estimation of damages. The prosecution did not take a different position on this matter.

The court will not take account of third-party payments in estimating the moral damages claimed, and will therefore not deduct these amounts from the lump-sum amounts to be awarded. First, the report prepared by DLA Piper (as it was then) shows that there is no basis for off-setting third-party payments in Ukrainian civil law, with the exception of payments from the liability insurer of the perpetrator of the harm. The payments made to the relatives were not, however, made by an insurer of the accused.

In addition, the payments to the relatives cannot be considered compensation for moral damage.

The payments from MAS, which were made pursuant to its obligations under the Montreal Convention, are not earmarked: the amounts paid out are lump sums and it was not specified which type of harm they were intended to redress. In addition, the written statement from the director of MAS shows that, in short, the amounts expressly do not concern the harm for which the perpetrators are liable.

It has also been established that the amounts which relatives have received from Petronas should be considered as gifts expressing solidarity and sympathy. Therefore, these amounts cannot be considered compensation for moral damage.

With regard to the insurance payments made to the relatives, counsel for the relatives explained, and this was not contested, on the basis of a presentation on insurance law and the submission of statements by theoretical and practising experts from the national and international insurance industry, that, in the case of MH17, payments were made only for material damage under general insurance policies and non-earmarked sums under a fixed-sum insurance policy. Therefore, the court assumes that no insurance payments have been made to compensate moral damage.

The court concludes that third-party payments will not be offset against the amounts of compensation to be awarded to the relatives in this case.

As it has been established that the payments from third parties do not relate to the moral damages to be awarded in these proceedings, a situation can no longer arise in which the accused are sued for the same material or moral damage both by the relatives and by these third parties on the basis of recourse or subrogation. The court need not therefore make any provision for such a situation.

12.5.5

Conclusion

Summary of the finding on claims

The claims of the two injured parties that were not filed by counsel for the relatives (whose names are stated in Appendix 4.7) will each be partially awarded in the amount of €46,236.58. As regards the extra sum claimed in each case (€1,500), the injured parties do not have standing with respect to their claim.

All other claims will be awarded in full.

This means that the court will order the accused to pay compensation to the injured parties totalling
€16,707,473.16 .

The decision on each individual claim submitted by counsel for the relatives will be presented in Excel overviews attached to this judgment (numbered Appendices 4.1 to 4.6, with each appendix corresponding to a member of counsel for the relatives).

Statutory interest

All injured parties claimed statutory interest on the amounts they claimed. From the expert reports on Ukrainian law filed by counsel for the relatives, the court infers that an order to pay statutory interest is possible and that the interest is applicable starting on the date on which the order to pay it is final. Accordingly, statutory interest will be added to the claims, to the extent that they are allowed, from the date specified above.

Cost order

With respect to the claims awarded, the accused will be ordered to pay the costs incurred by the injured parties with respect to those claims up to the date of this judgment. To date, the court estimates these costs at nil. Furthermore, the accused is ordered to pay the costs yet to be incurred for enforcement.

Compensation order

The accused is being convicted for the proven offences and he is therefore liable to the injured parties whose claims have been upheld, in full or in part, for the harm which they suffered owing to those offences. The court will impose on the accused the obligation to pay to the State the amount awarded per claim for each claim awarded above. The court will also determine that statutory interest will apply to this payment obligation from the date on which the order to that effect is final, for the benefit of the injured parties.

The court determines that full or partial payment of the amounts due to the injured parties shall void the payment obligation to the State to that extent, and that full or partial payment of the amounts due to the State shall void the payment obligations to the injured parties to that extent.

Committal for failure to comply

Pursuant to Sections 36f(5) and 60a DCCP, when imposing a compensation order it may be stipulated that coercive detention is imposed in the event of failure to pay and to obtain recovery. The duration of the coercive detention in this case shall not exceed one year (360 days). ^[229] The court imposes the compensation order with respect to 306 claims. If the court were to follow the LOVS orientation points for the application of coercive detention, then a single compensation order of between €40,000 and €50,000 could result in the imposition of between 235 days and 285 days of coercive detention; in the case of 306 compensation orders being issued, the coercive detention would then far exceed the maximum duration. In view of the large number of claims, and in order to avoid complications in enforcement by the Public Prosecution Service, the court determines that one day of coercive detention will be imposed per compensation order to be awarded. The imposition of coercive detention does not void the payment obligation.

Awarding jointly and severally

The court has judged that the accused committed the proven offences together with others. Since the accused and his co-perpetrators committed an unlawful act together and the harm was caused in association, they are jointly and severally liable to the injured parties for the harm in its totality. Accordingly, the court imposes the aforementioned order for the payment of compensation, order for the payment obligation to the State and order for the payment of costs jointly and severally in each case.

13. THE APPLICABLE SECTIONS OF LAW

The sentence and orders to be imposed are based on Sections 36f, 47, 55, 57, 168 and 289 of the Dutch Criminal Code.

These provisions have been applied as they applied in law at the time the proven crimes took place, or at the time of this judgment.

14. THE DECISION

The court:

finds that it has been legally and conclusively proven that the accused is guilty of the principal charges under the first and second count, as found proven in chapter 7 above, and that the proven charges are characterised as follows:

two offences arising from the same act:

first principal charge

co-perpetration of, intentionally and unlawfully, causing an aircraft to crash, although this was likely to endanger another person's life and the act resulted in a person's death ;

and

second principal charge

co-perpetration of murder, committed multiple times ;

finds the charges proven and to the accused punishable for them;

finds the other or further charges against the accused not proven and acquits the accused thereof;

sentences the accused to:

life imprisonment ;

with respect to the 304 injured parties represented by counsel for the relatives

awards
all claims for compensation of the injured parties in full, up to the amount specified in Appendices 4.1 to 4.6 to this judgment for each individual claim, and orders the accused jointly and severally to pay those amounts, plus the claimed statutory interest thereon from the date this judgment becomes final until the day this claim is paid, to these injured parties;

with respect to the two injured parties not represented by counsel for the relatives

awards the claims for compensation of the injured parties - as named in Appendix 4.7 - in part, each up to an amount of
€46,236.58 and orders the accused jointly and severally to pay this amount, plus in each instance the claimed statutory interest thereon from the date this judgment becomes final until the day this claim is paid, to those injured parties;

determines that for the rest (an amount of €1,500 for the lost laptop), these injured parties have no standing with respect to their claim for compensation;

joint and several liability

determines, with respect to each of the aforementioned claims that have been awarded, in each instance, that if one of the co-perpetrators has paid part or all of the awarded compensation to the injured party, the accused is no longer obligated to pay or settle that part;

cost order against the accused

also orders the accused jointly and severally to pay the legal costs of all injured parties, estimated at nil, and the costs still to be incurred for the purposes of enforcement;

imposition of the compensation order

imposes on the accused, with respect to each of the
claims awarded above, jointly and severally, the obligation to pay to the State the amount set forth in Appendices 4.1 through 4.6 attached to this judgment, for each individual claim, plus in each instance the statutory interest thereon, from the date this judgment becomes final until the day these amounts are paid, for the benefit of those injured parties;

imposes on the accused, with respect to each of the two claims awarded - as named in Appendix 4.7 - jointly and severally, the obligation to pay to the State the sum of
€46,236.58 , plus in each instance the statutory interest thereon, from the date this judgment becomes final until the day this amount is paid, for the benefit of the injured parties;

provides that if the amounts due for the claims awarded above are not paid in full or cannot be recovered, coercive detention may be applied for each of those claims for the duration of
1 (one) day ; such coercive detention will not extinguish the payment obligations imposed above;

determines with respect to each of the
claims awarded above in each instance that full or partial payment of the amount due to the injured party shall extinguish the State's obligation to pay to that extent, and that full or partial payment of the amount due to the State shall extinguish the obligation to pay the injured party to that extent;

application for arrest

orders the arrest of the convicted person (this decision has been drawn up separately).

This judgment was delivered by

Mr H. Steenhuis, presiding judge,

Mr D.A.C. Koster, judge,

Ms C.I.H. Kerstens-Fockens, judge,

in the presence of Ms M. Sepmeijer-Kovacevic and Mr J. Biljard, clerks of the court,

and pronounced in open court on 17 November 2022.

Appendix 1: Text of indictment

1. (Causing an aircraft to crash)

Principal charge (functional perpetration or co-perpetration)

on or around 17 July 2014, in Ukraine (in the Donetsk oblast) he, together and in association with one or more others, or alone, as functional perpetrator or co-perpetrator, intentionally and unlawfully, caused an aeroplane (namely flight MH17) to crash, by firing a Buk missile by means of a Buk TELAR (near Pervomaiskyi), although this was likely to endanger the lives of the occupants of said aeroplane (of whom the 298 names are set out in the annex to this indictment) and said occupants were killed as a result;

(Sections 168 and 47 of the Dutch Criminal Code)

Alternative charge (co-perpetration)

on or around 17 July 2014, in Ukraine (in the Donetsk oblast) he, together and in association with one or more others, intentionally and unlawfully, caused an aeroplane (namely flight MH17) to crash, by firing a Buk missile by means of a Buk TELAR (near Pervomaiskyi), although this was likely to endanger the lives of the occupants of said aeroplane (of whom the 298 names are set out in the annex to this indictment) and said occupants were killed as a result;

(Sections 168 and 47 of the Dutch Criminal Code)

Further alternative charge (co-perpetration of incitement)

on or around 17 July 2014, in Ukraine (in the Donetsk oblast), one or more others, together and in association, or alone, intentionally and unlawfully, caused an aeroplane (namely flight MH17) to crash, by firing a Buk missile by means of a Buk TELAR (near Pervomaiskyi), although this was likely to endanger the lives of the occupants of said aeroplane (of whom the 298 names are set out in the annex to this indictment) and said occupants were killed as a result;

which offence the accused incited intentionally, together and in association with one or more others, or alone, in or around the period of 8 June 2014 to 17 July 2014, in Ukraine (and the Russian Federation), by abuse of authority and/or providing opportunity, means and/or information, (using his or their position of authority) by:

- requesting and/or ordering provision of a (Russian) air defence system (with crew), or having this or these requested and/or ordered,

- announcing the need for air defence in support of the armed conflict of the Donetsk People’s Republic (around Stepanivka and Marynivka) to the commander or commanders and/or crew of said Buk TELAR, or by having this need announced,

- announcing a suitable site or launch site to the crew and/or escort or escorts and/or transporter or transporters of said Buk TELAR, or by having this announced,

- providing the crew and/or escort or escorts and/or transporter or transporters of said Buk TELAR with a telephone with a Ukrainian telephone number, or by having it or them provided with said telephone, in order to be able to communicate effectively with other persons involved,

- by transporting and/or escorting said Buk TELAR and/or the crew of said vehicle on the route or part thereof to the launch site near the town of Pervomaiskyi, or by having this or these transported and/or escorted,

and/or

- by guarding and/or hiding said Buk TELAR, or by having it guarded and/or hidden;

(Sections 168 and 47 of the Dutch Criminal Code)

Furthest alternative charge (co-perpetration of complicity)

on or around 17 July 2014, in Ukraine (in the Donetsk oblast), one or more others, together and in association, or alone, intentionally and unlawfully, caused an aeroplane (namely flight MH17) to crash, by firing a Buk missile by means of a Buk TELAR (near Pervomaiskyi), although this was likely to endanger the lives of the occupants of said aeroplane (of whom the 298 names are set out in the annex to this indictment) and said occupants were killed as a result;

to this end and/or in committing said offence, the accused, together and in association with one or more others, or alone, intentionally provided, in or around the period of 8 June 2014 to 17 July 2014, in Ukraine (in Donetsk oblast), opportunity and/or means and/or information and/or intentionally assisted in its commission by:

- announcing the need for air defence in support of the armed conflict of the Donetsk People’s Republic (around Stepanivka and Marynivka) to the commander or commanders and/or crew of said Buk TELAR, or by having this need announced,

- announcing a suitable site or launch site to the crew and/or escort or escorts and/or transporter or transporters of said Buk TELAR, or by having this announced,

- providing the crew and/or escort or escorts and/or transporter or transporters of said Buk TELAR with a telephone with a Ukrainian telephone number, or by having it or them provided with said telephone, in order to be able to communicate effectively with other persons involved,

- by transporting and/or escorting said Buk TELAR and/or the crew of said vehicle on the route or part thereof to the launch site near the town of Pervomaiskyi, or by having this or these transported and/or escorted,

and/or

- by guarding and/or hiding said Buk TELAR, or by having it guarded and/or hidden;

2. (Murder/Manslaughter)

Principal charge (functional perpetration or co-perpetration)

on or around 17 July 2014, in Ukraine (in the Donetsk oblast) he, together and in association with one or more others, or alone, as a functional perpetrator or co-perpetrator, intentionally (and with premeditation), took the lives of the occupants of an aeroplane (namely flight MH17) (of whom the 298 names are set out in the annex to this indictment), by using a Buk TELAR to fire a Buk missile at that aeroplane (near Pervomaiskyi), which caused said aeroplane to crash and said occupants to die;

(Sections 289, 287, and 47 of the Dutch Criminal Code)

Alternative charge (co-perpetration)

on or around 17 July 2014, in Ukraine (in the Donetsk oblast) he, together and in association with one or more others, intentionally (and with premeditation), took the lives of the occupants of an aeroplane (namely flight MH17) (of whom the 298 names are set out in the annex to this indictment), by using a Buk TELAR to fire a Buk missile at that aeroplane (near Pervomaiskyi), which caused said aeroplane to crash and said occupants to die;

(Sections 289, 287, and 47 of the Dutch Criminal Code)

Further alternative charge (co-perpetration of incitement)

on or around 17 July 2014, in Ukraine (in the Donetsk oblast), together and in association with one or more others, or alone, intentionally (and with premeditation), took the lives of the occupants of an aeroplane (namely flight MH17) (of whom the 298 names are set out in the annex to this indictment), by using a Buk TELAR to fire a Buk missile at that aeroplane (near Pervomaiskyi), which caused said aeroplane to crash and said occupants to die;

which offence the accused incited intentionally, together and in association with one or more others, or alone, in or around the period of 8 June 2014 to 17 July 2014, in Ukraine (and the Russian Federation), by abuse of authority and/or providing opportunity, means and/or information, (using his or their position of authority) by:

- requesting and/or ordering provision of a (Russian) air defence system (with crew), or having this or these requested and/or ordered,

- announcing the need for air defence in support of the armed conflict of the Donetsk People’s Republic (around Stepanivka and Marynivka) to the commander or commanders and/or crew of said Buk TELAR, or by having this need announced,

- announcing a suitable site or launch site to the crew and/or escort or escorts and/or transporter or transporters of said Buk TELAR, or by having this announced,

- providing the crew and/or escort or escorts and/or transporter or transporters of said Buk TELAR with a telephone with a Ukrainian telephone number, or by having it or them provided with said telephone, in order to be able to communicate effectively with other persons involved,

- by transporting and/or escorting said Buk TELAR and/or the crew of said vehicle on the route or part thereof to the launch site near the town of Pervomaiskyi, or by having this or these transported and/or escorted,

and/or

- by guarding and/or hiding said Buk TELAR, or by having it guarded and/or hidden;

(Sections 289, 287, and 47 of the Dutch Criminal Code)

Furthest alternative charge (co-perpetration of complicity)

on or around 17 July 2014, in Ukraine (in the Donetsk oblast), together and in association with one or more others, or alone, intentionally (and with premeditation), took the lives of the occupants of an aeroplane (namely flight MH17) (of whom the 298 names are set out in the annex to this indictment), by using a Buk TELAR to fire a Buk missile at that aeroplane (near Pervomaiskyi), which caused said aeroplane to crash and said occupants to die;

to this end and/or in committing said offence, the accused, together and in association with one or more others, or alone, intentionally provided, in or around the period of 8 June 2014 to 17 July 2014, in Ukraine (in Donetsk oblast), opportunity and/or means and/or information and/or intentionally assisted in its commission by:

- announcing the need for air defence in support of the armed conflict of the Donetsk People’s Republic (around Stepanivka and Marynivka) to the commander or commanders and/or crew of said Buk TELAR, or by having this need announced,

- announcing a suitable site or launch site to the crew and/or escort or escorts and/or transporter or transporters of said Buk TELAR, or by having this announced,

- providing the crew and/or escort or escorts and/or transporter or transporters of said Buk TELAR with a telephone with a Ukrainian telephone number, or by having it or them provided with said telephone, in order to be able to communicate effectively with other persons involved,

- by transporting and/or escorting said Buk TELAR and/or the crew of said vehicle on the route or part thereof to the launch site near the town of Pervomaiskyi, or by having this or these transported and/or escorted,

and/or

- by guarding and/or hiding said Buk TELAR, or by having it guarded and/or hidden.

(Sections 289, 287, 47 and 48 of the Dutch Criminal Code)

APPENDIX

[the names of the 298 victims are not included here for privacy reasons]

Appendix 2: Overview of other call participants in intercepted conversations used as evidence

These other call participants, unlike the accused, are referred to by their call sign in the paraphrased intercepted conversations, and persons whose identities remained unknown in the investigation are referred to in the intercepted conversations as person unknown, possibly followed by their call sign. The court has chosen not to anonymise the names of persons in public office and those who have themselves explicitly come out publicly.

The following persons are involved:

 [
[Name 1] , aka Grek: DPR fighter under Commander Bezler. ^[230]

 Aksenov, Sergei Valeryevich: Prime Minister of Crimea annexed by Russia. ^[231]

 [
[Name 2] , aka Nos: commander of the DPR police force. ^[232]

 [
[Name 3] , aka Tor: commander in the DPR. ^[233]

 Bezler, Igor Nikolayevich: DPR commander in Horlivka and Makiivka. ^[234]

 Borodai, Alexander Yurevich: Prime Minister of the DPR. ^[235]

 [
[Name 4] , aka Boks: DPR fighter and Head of the Anti-Corruption Department. ^[236]

 [
[Name 5] : Deputy Minister of Defence and LPR commander. ^[237]

 [
[Name 6] , aka Bibliothekar: Logistics unit of the DPR. ^[238]

 [
[Name 7] , aka 14th: associate of the head of the DPR's military intelligence department. ^[239]

 [
[Name 8] , aka Ryazan: commander of a DPR reconnaissance platoon. ^[240]

 Gubarev, Pavel Yurevich: governor of the DPR. ^[241]

 [
[Name 9] , aka Skif: commander of the Vostok battalion. ^[242]

 [
[Name 10] , aka Mirash: DPR fighter. ^[243]

 [
[Name 11] , aka Ataman: DPR fighter, leader of a Cossack group in Snizhne. ^[244]

 [
[Name 12] , aka Koba: fighter with the Vostok battalion. ^[245]

 Plotnitskiy, Ihor Venedyktovych: LPR Minister of Defence. ^[246]

 [
[Name 13] , aka Botsman: DPR fighter and replacement for Bezler. ^[247]

 [
[Name 14] , aka Dushman: deputy commander of the Vostok battalion. ^[248]

 S21, aka Leshyi/Leshy: DPR fighter. ^[249]

 [
[Name 15] , aka (San) Sanych: deputy commander of the Vostok battalion and Deputy Prime Minister for the DPR Ministry of Economy. ^[250]

 [
[Name 16] , aka Zmey: commander and DPR intelligence officer. ^[251]

 [
[Name 17] , aka Siniy: commander and chief of staff of the DPR. ^[252]

 [
[Name 18] , aka Prapor: DPR battalion commander. ^[253]

 [
[Name 19] , aka Mongol: DPR commander. ^[254]

 Surkov, Vladislav: Assistant to President Putin of the Russian Federation. ^[255]

 [
[Name 20] , aka Koreets: anti-aircraft defence commander. ^[256]

 [
[Name 21] , aka Cap: DPR commander in Snizhne. ^[257]

 [
[Name 22] : Commander of a DPR logistics unit and Bibliothekar's commander. ^[258]

 [
[Name 23] , aka Dikson: commander of a platoon under Kharchenko. ^[259]

 [
[Name 24] : commander of the Oplot battalion and commander of Donetsk. ^[260]

 [
[Name 25] , aka Taiga: man who has access to information about flights from various airports. ^[261]

Appendix 3: Paraphrased intercepted conversations and visual material arranged by date and time

Paraphrased below are the intercepted conversations used by the court as evidence, in order of date and time, in conjunction with other evidence used by the court. This mainly concerns visual material that the court included in the overview of intercepted conversations in chronological order. In addition, this concerns historical telecom traffic that can be used to determine connections with phones present in the vicinity of specific locations.

Intercepted phone calls made on 8 June 2014

11:30: ^[262] Girkin calls Aksenov's replacement and asks him to Arelay to the Prime-Minister that we will be crushed if we do not get large-scale support. If the request for assistance from the Russian side is not resolved, it will not be possible to hold the east. Decent air defence systems are needed because Manpads are no longer satisfactory. And we need all this, including specialists - specialists who are already trained -, because we don't have time to train them anymore.

11:46: ^[263] Girkin is called back by Aksenov. Aksenov says he is aware of the situation and has informed others. He is awaiting a response and has another meeting that evening about the support needed. After the meeting, he will contact Girkin again. He also says that a general coordination centre for this situation has been set up, and a person has been appointed to coordinate this situation. The necessary documents for support are being prepared.

Intercepted phone calls made on 6 and 7 July 2014

16:48: ^[264] Dubinskiy says Pulatov is coming to Shchorsa now, to the IUD, with person unknown Piton. Dubinskiy has an urgent task for them. They must leave tonight, and Dubinskiy will tell them where they will be positioned, and he will even show them.

17:13: ^[265] Pulatov tells Dubinskiy that they are in the URD, but that he doesn't remember where Dubinskiy is. They have to go to the third floor; Pulatov is on his way. After Dubinskiy says, come in, come in, the recorded conversation continues. Presumably this is a pocket call. About five people are present, including Dubinskiy, Pulatov and person unknown Piton. Something is placed on the table. Dubinskiy mentions the border with the Russian Federation, the border with the Luhansk region and the place Dmytrivka and says: our immediate task, the task is - we set up a corridor from here to here. In the evening, you must (inaudible) which of person unknown Piton's men you take with you. You will go to Snizhne, to Commander Prapor. He will position you near Dmytrivka. His chief of staff signed this mess. The task is to carry out additional reconnaissance of these areas of high ground. These four areas of high ground and here.

13:31: ^[266] Pulatov reports to Dubinskiy that ‘we’ are coming back. Dubinskiy tells them to come home, to our base. Pulatov's task with the highest priority is to convey the information.

Intercepted phone calls made on 15 July 2014

13:25: ^[267] Girkin's assistant calls
[Name 22] and asks him to contact Girkin because a group of men came to see them and now they are in an
"abso-fucking-lutely bad mood" .
[Name 22] asks if Bibliothekar has arrived yet, but the assistant does not know.

13:29: ^[268] [Name 22] calls Girkin's assistant and says he can't get hold of Girkin and that the assistant should tell Girkin that they got four nosed ones, three Gvozdikas and an APC/80th, but that the belt on one broke when they still had 50 kilometres to go. They are going to replace the belt and then move on. The assistant will pass it on to Girkin now.

13:42: ^[269] Girkin asks
[Name 24] if a shipment could be escorted from that location at 21:00 today. The shipment must be taken receipt of at the border; it’s a big thing that’s very good and necessary for us.
[Name 24] will let Girkin know in 40 minutes.

13:57: ^[270] Girkin orders Dubinskiy to come to him immediately because he has an urgent assignment for Dubinskiy.

14:36: ^[271] Dubinskiy tells Pulatov that Pulatov must come to the SBU building to receive a new assignment. Because it's not good at all.

14:37: ^[272] Kharchenko is called by Dubinskiy who says Kharchenko should come to him at the General Staff at the SBU to receive a new, important assignment.

15:23: ^[273] Kharchenko tells person unknown Tankist that everyone must come to the General Staff urgently, that all recruits must be fully armed and all vehicles refuelled. In short: everything and everyone in full combat gear because we are preparing for marching.

16:17: ^[274] Kharchenko calls Pulatov and asks what time they should be ready to leave. Pulatov wants to form up and issue orders starting at 19:00.

16:29: ^[275] Kharchenko calls Dubinskiy. Kharchenko needs two empty URAL trucks for the duration of the operation. Dubinskiy tells him that he can pick up one from Koreets on Dubinskiy's orders; there is no second one. Dubinskiy also asks Kharchenko to let Pulatov know that everything is ready.

17:56: ^[276] Kharchenko discusses with Girkin's assistant that this arsehole won't give him fuel while he is about to set off for marching. Kharchenko wants the assistant to call this person, tell him that Girkin is the one who set up this task and why he should give Kharchenko the fuel he needs.

19:37: ^[277] Kharchenko calls Pulatov and says he is still at the base. Pulatov says they are already there and already ‘forming up’ and that Kharchenko should come to ‘Illicha’ (street). Pulatov says they are driving slowly and Kharchenko will catch up with them. Oplot's heavy ones are not there yet.

20:27: ^[278] Pulatov informs Kharchenko that he is still waiting for these ones; not everyone is there yet. Kharchenko is already on his way. They agree to drive to Khartsyzk and wait for each other there.

21:16: ^[279] Kharchenko tells Pulatov that he is just driving into Khartsyzk; Pulatov is still on his way.

22:54.: ^[280] [Name 24] calls
[Name 10] and says Giurza
"is like a coordinator of all forces that have been dragged and are being dragged there." [Name 10] tells
[Name 24] to come to Snizhne quickly to plan everything;
"OK" says
[Name 24] .

23:29: ^[281] Kharchenko informs Pulatov that he is in Snizhne. Pulatov says to go to Prapor and report that the main forces are coming. They will arrange it with everyone at the key point.

Intercepted phone calls made on 16 July 2014

04:37: ^[282] Kharchenko has to report to Girkin on Pulatov's behalf that Pulatov has driven the boxes to the first landmark. Pulatov also reports that he is going back.

07:34: ^[283] Dubinskiy asks Pulatov how the war is going. Pulatov says they were unable to break through enemy positions because of too many reinforcements and long-range shelling.

11:18 - 11:51: Together with Borodai, Girkin is at a location that is 3.53 kilometres as the crow flies from the launch site (a location located near Marynivka between the front line and the launch site). ^[284] At this location, he gives an interview to Life-news, recounting developments at the front:
"We launched an attack on Marinovka. We tried to cut the corridor connecting the southern enemy group with their main units in half, but we didn't quite manage it. We took three hills and a village, but we did not succeed in getting to the border itself; they are too strong here." ^[285]

11:43: ^[286] Person unknown Belarus tells Ataman that a Sushka is circling. It is flying very high, and it is impossible to reach it. The Sushka has just fired, but person unknown Belarus does not know exactly where to; he thinks towards Marynivka. Can Ataman check with his contact in Marynivka?

11:50: ^[287] Koreets calls person unknown Vega and asks if he saw that Sushka:
"It fucking hit Savur-Mohyla from a very high altitude".

12:14: ^[288] Dubinskiy tells Nos that Dubinskiy's troops are being prevented from reaching higher ground by howitzers on three sides. There is heavy fighting going on there. Kharchenko, Tor and person unknown Piton are there, and so is our mutual friend, to see how things are going.

13:16: ^[289] Kharchenko reports to Dubinskiy that he is in Marynivka, that they are under fire and that he has already lost 30% of his men to artillery. Others are also being wiped out. Dubinskiy will call Girkin now, but cannot promise anything.

13:22: ^[290] Koreets calls Pulatov and tells him that he has ZU-23 anti-aircraft artillery with crew with him. Pulatov orders him to advance to Stepanivka with it.

13:26: ^[291] Pulatov calls Kharchenko and asks him if he is organising the defence. Kharchenko says there is no question of mounting a defence with the number of wounded he has; more than half of his men. Kharchenko's men are being shot like bitches by air strikes (Sushka) and mortars. Kharchenko has no means of digging in and the Strela is out of action.

13:33: ^[292] Kharchenko calls Pulatov and tells him that Tor's people arrived and went to the high ground. Pulatov tells Kharchenko to tell Tor to occupy the high ground and bring the tanks there.

13:39: ^[293] Kharchenko is called by Pulatov who tells him he has to relay the number of dead and wounded to Pulatov so that he is aware of the situation on the ground there. Also, despite everything, Kharchenko must maintain the defence and the captured line.

15:28: ^[294] Koreets calls Pulatov and says he is in Stepanivka. "
Now what?" he asks. Pulatov tells him to stay there and watch the sky,
"There's some motherfucker flying out there."

16:23: ^[295] Dubinskiy calls Bibliothekar and asks if he is going to leave today. Dubinskiy tells him he can take yesterday's car and get another one from Kharchenko. Bibliothekar is still waiting for a phone call.

17:11: ^[296] Dubinskiy asks Kharchenko how the fight is going. Kharchenko says he is holding firm in Marynivka on Pulatov's orders and that they are under constant fire. Dubinskiy will wait for Girkin to return and will ask him to issue an order for Kharchenko to withdraw from Marynivka. Kharchenko is losing a lot of men and equipment.

17:52: ^[297] Girkin orders Cap to go to Stepanivka and Marynivka with his troops as reinforcement for the reconnaissance battalion.

17:54: ^[298] Kharchenko gets a call from Pulatov. Kharchenko reports to Pulatov how many people have been put out of action. Kharchenko reveals that there are ten times ‘200’ and that it is not yet known how many of the ‘300’ there are. Pulatov expects Kharchenko to provide more precise figures because they need to know what needs to be discussed with senior staff.

18:12: ^[299] Pulatov reports to Dubinskiy on losses of personnel and equipment, including Kharchenko's, as a result of the aerial attack and artillery fire from Hryhorivka and Kozhevnia. Our air defence, the Strela, is out of action and will be taken away overnight for repair. Dubinskiy wants to send three tanks, but Pulatov needs long-range artillery and good anti-aircraft defence because an aircraft was ‘working’ at high altitude and was inaccessible to almost all the systems. Dubinskiy has mapped the targets from which artillery will be fired and Girkin is sending them to Moscow now. Russia should just take them out. The eastern side of Marynivka is not really relevant at the moment; no one will go from there to Pervomaiskyi or to Snizhne.

18:43: ^[300] Dubinskiy tells Kharchenko that the only thing he has been able to do for Kharchenko is that two of Cap's companies will go to Marynivka and the areas of high ground to relieve Kharchenko. Tor is going to Stepanivka. Kharchenko should then keep one assault company on stand-by in Stepanivka and leave for home with the reconnaissance company and the second assault company.

18:55: ^[301] Mongol reports to Dubinskiy that they have mostly destroyed the radar at the airport, but not completely yet. Dubinskiy says his men are suffering heavy losses due to bombing from an altitude of seven kilometres, but they did take Marynivka and have surrounded the corridor. Pulatov cleared one area of high ground.

19:09: ^[302] Sanych reports to Dubinskiy that the Ukrainians are bringing heavy equipment, including Grads, from Alekseyevka towards Hryhorivka. Dubinskiy says the Ukrainians are going to Hryhorivka and assembling troops to break through, because we blocked them at the cauldron. Dubinskiy was there himself, and we took Marynivka and the higher ground. Sushkas were deployed from an altitude of five or six kilometres. The most important thing now is to strike those two batteries in Hryhorivka. Dubinskiy tells Sanych that they can still do something against Grads, but if the Sushkas attack in the morning... Dubinskiy says that if he can manage to get a Buk to send there in the morning, that will be good, but if he can't, then it will really suck. Dubinskiy says he plans to go there himself.

19:13: ^[303] Dubinskiy tells Kharchenko to take back the APCs and the dead and wounded. Dubinskiy reiterates that Kharchenko should keep an assault company on stand-by in Stepanivka and leave for home with a reconnaissance company and an assault company, but not until Cap arrives.

19:48: ^[304] Gubarev reports to Dubinskiy about additional equipment he has and asks where that equipment should go. Dubinskiy says he wants to discuss that tomorrow, as he is fighting now and is leaving to go there now. If additional men come, they should go to Tor as reinforcement.

19:57: ^[305] Bibliothekar asks Dubinskiy which vehicle he needs to pick up at Kharchenko's location. Bibliothekar is there now; Dubinskiy replies that he is coming out, wait.

20:06: ^[306] Sanych says he has been told that what Dubinskiy was talking about earlier should be sent to where Dubinskiy's men are in two ‘units’. Dubinskiy agrees that they should arrive today and that he wants to send them there right away. Dubinskiy speaks again of high altitude aerial attacks that happened when he had already left.

20:11: ^[307] Dubinskiy tells Pulatov that two of Cap's companies are now on their way to replace Kharchenko in Marynivka. Tor is going to Stepanivka. Kharchenko is going to Stepanivka to be on stand-by. Kharchenko has been ordered to go home tomorrow and so Pulatov will too. Dubinskiy says that if a Buk M is brought here tonight, it will go straight to Pulatov. That Buk is our only hope, we can't do anything else, right?

20:45: ^[308] Siniy asks where Dubinskiy is. Dubinskiy says he is in Donetsk. Girkin is there, at his. Siniy needs weapons because he is about to leave for Marynivka; Dubinskiy will pass that on to Girkin.

20:49: ^[309] Pulatov reports to Dubinskiy that our air defence brought down a Sushka with a Manpad. Dubinskiy tells Pulatov that ‘our boys’ are coming to him, including two of Cap's companies. Pulatov says he will accommodate them, and that he has two more out-of-order boxes and the out-of-order 10 to be removed from here. Dubinskiy says they have just decided that they will wait and see for another 24 hours, and otherwise Pulatov will have to send everyone back. If Cap is there, he should take full command. Pulatov will then do the general things and observe remotely.

20:57: ^[310] Pulatov says he reported it incorrectly. "
Did I say it was shot with a 'ZUshka', or did I say with 'Strela'? It was in fact shot with a 'ZUshka'."

22:02: ^[311] Person unknown Belarus is speaking with two other fighters. Our men here shot down two Sushkas in one day.

Intercepted phone calls and visual material on the morning of 17 July 2014

00:12: ^[312] Girkin gets feedback from Cap by phone, telling him that the enemy will rain tonnes of metal on them tomorrow. They need to strengthen their positions.

00:17: ^[313] Skif offers Dubinskiy support to hold the area, as Dubinskiy's task is now the priority. Dubinskiy says that the moment the Sushkas were deployed from an altitude of five kilometres, he immediately lost a number of men. Dubinskiy says that a Buk will arrive tonight and all problems will be solved then. If Dubinskiy wants manpower and equipment from Skif, including four tanks, he should pass that on to Sanych.

00:26: ^[314] Dubinskiy tells Girkin that Skif, kind of out of the blue, offered the support of three tanks and about a hundred men. Girkin says he ordered that three broken tanks be evacuated; these could then be deployed in their place. Girkin tells Dubinskiy that he himself must issue the order for the movement of Skif's tanks at eight o'clock in the morning. Both men also wonder where they are going to find commanders anyway.

07:05: ^[315] Pulatov asks Kharchenko where he is. Kharchenko says he is in Donetsk because Dubinskiy called him and told him to go, because Cap had arrived. Kharchenko should have warned Pulatov that he was going, because Pulatov had been told yesterday to be ready to go back with Kharchenko today. Pulatov says he does not understand how orders are given; first he was designated as leader, but then Kharchenko was given another order, bypassing Pulatov. Why do they need me here as a man in charge, Pulatov wonders. Pulatov tells Kharchenko to report to Dubinskiy because Pulatov is still here with everyone. Pulatov will figure out for himself what is going on here. Kharchenko adds that 30% was wounded yesterday.

08:23: ^[316] Tor tells the assistant to report to Girkin that they have been defeated at high ground 172.9 and that the high ground has been taken by the enemy. Three out of 30 people survived.

08:27: ^[317] Girkin reports to Borodai that high ground 172.9 has been completely crushed. Three of the 30 men survived, and the high ground was abandoned.
"Oh, fucking shit," Borodai responds. Girkin asks Borodai to come here.

08:38: ^[318] Dubinskiy calls Sanych and asks him to send three tanks and ten or so men as cover because of the difficult situation there. They have to go to Stepanivka and will be positioned by Dubinskiy's men, in Marynivka and so on. Sanych will pass it on to Skif.

09:08: ^[319] Bibliothekar tells Dubinskiy that he has arrived in Donetsk with the Buk M on a truck and with a crew. He asks Dubinskiy where he has to unload and hide it. Dubinskiy says it doesn't need to be hidden anywhere; it will go there directly. Prior to this conversation, Bibliothekar can be heard saying to others:
"Guys, ... We need to slow down, get in the left lane, completely in the left lane".

Donetsk photo. ^[320] This photo shows a Buk TELAR on a red flatbed trailer, taken at 78 Illicha Avenue in Donetsk. ^[321] According to the KNMI, the weather pattern in the photo corresponds to that of 17 July 2014, and, assuming that date, the photo was taken between 08:48 and 09:32. ^[322] According to the NFI and the National Forensic Centre of the Swedish Police, the photo shows no signs of tampering. ^[323]

09:20: ^[324] Kharchenko reports to Dubinskiy that he is home, here at the SBU, that Cap has replaced him and that he has left a company in Stepanivka as Dubinskiy had said. Dubinskiy is also at the SBU, with Girkin. Then Kharchenko will come up in a moment.

09:22: ^[325] Dubinskiy asks Bibliothekar if he has one or two with him. Bibliothekar says he has one with him. It had crossed the line by itself and had now been mounted on a trailer. Dubinskiy tells Bibliothekar that it will go together with tanks from Vostok.

09:23: ^[326] Dubinskiy tells Sanych that his Buk M is going with him and asks where it can be included in the convoy. Sanych says behind ‘Motel’.

09:24: ^[327] Dubinskiy tells Bibliothekar to turn around to where three of Vostok's tanks are located between Motel and Makiivka. Bibliothekar must ride there in convoy together with these tanks.

09:31: ^[328] Pulatov asks Dubinskiy to have the ‘eastern neighbour’ take a look at the group of pigs that has crept east from Hryhorivka. The eastern neighbours should then give them hell. Dubinskiy tells Pulatov that Kharchenko will now bring a Buk M to him. The Buk should be installed in the vicinity of Pervomaiske. Three tanks with guards are also coming from Vostok.

09:51: ^[329] Sanych tells Dubinskiy they are ready and waiting for Dubinskiy's unit. Dubinskiy says Kharchenko will go with Sanych. Sanych's men are going to Stepanivka, and Kharchenko knows where the Buk has to go. Dubinskiy tells Dushman to escort Sanych's men to Stepanivka, to Tor and Cap. Dushman knows Tor and Cap. So then Sanych does not have to wait for Dubinskiy's people; Kharchenko will escort it himself.

09:53: ^[330] Bibliothekar asks Dubinskiy if he should turn around and go after them, to which Dubinskiy asks if he was not called by Kharchenko. He was not. Dubinskiy tells Bibliothekar to go back to the Motel ring. Kharchenko will pick him up there and escort him there.

09:54: ^[331] Dubinskiy tells Kharchenko that thing will be behind the Motel ring; you know what I mean. Kharchenko should call/consult Bibliothekar. Kharchenko should bring the people he needs for the escort, and when he gets near Pervomaiske, he should settle in the area and get his people there. His job is then to be on stand-by and guard that thing he is now going to escort. Pulatov will be coming there, too. Dubinskiy will stay in contact.

09:55: ^[332] Dubinskiy tells Pulatov to tell Cap and the others that three rhinos from Vostok are on their way. Pulatov gathered that, because he just spoke to Girkin. Dubinskiy says Pulatov should wait for Kharchenko, who is escorting the Buk M. Pulatov understands the ‘wooden language’. Then Pulatov, Kharchenko and all our people should stay in the Pervomaiske/Pervomaiskyi area.
"Your task is to guard this Buk and organise all of this." Pulatov does still need to send someone to meet the rhinos. Pulatov will take care of all this now, but first he needs to get his spitters to their positions. At the same time he is also keeping the corridor free here for unimpeded delivery to Tor.

10:01: ^[333] Girkin is called by Tor who updates Girkin on the dead and the wounded and broken tanks, who tells him that Cap has arrived and asks who is in charge; Cap or Pulatov? Girkin indicates that Cap is responsible for the defence and that Pulatov is in charge until he hands over to Cap. Girkin tells Tor to deploy artillery against the enemy on the hills, because that is where they are firing from. Tor confirms that they are already in the process of implementing the order issued by Girkin. Pulatov has already received all the orders from Girkin; he will have to try to switch something there. Girkin concludes by indicating that there will be tanks joining Tor and his men today, in support.

10:04: ^[334] Kharchenko is called by Dushman and informs him that he will be at Motel in 40 minutes. Because he feels that will take too long, Dushman says he will leave already and that Kharchenko will catch up with him.
"Okay", says Kharchenko.

Video of Makiivka Highway at Donetsk ^[335] and Paris Match photo ^[336] . This video and the photo taken from it were taken on the Makiivka Highway in Donetsk ^[337] , and, according to witness G9081, show an SA-11 air defence system (court: the NATO designation for a Buk TELAR) and a flatbed trailer used to transport those systems. ^[338] The court itself also recognises a Buk TELAR on a flatbed trailer in these images. According to the KNMI, the weather pattern in the video (and therefore the photo) corresponds to that of the morning of 17 July 2014, and, assuming that date, the image was taken between 10:13 and 10:26. ^[339] According to the NFI, the video shows no signs of the content of the image or the metadata having being tampered with ^[340] , even after repeated examination following allegations of forgery from the Ministry of Defence of the Russian Federation. ^[341]

Makiivka video. ^[342] This video (shortened by the JIT to remove identifying data) ^[343] was taken on Avtotransportna Street in Makiivka and shows a convoy, including a white-coloured Volvo tractor with a red-coloured trailer carrying a Buk TELAR. ^[344] According to the KNMI, the weather pattern in the video corresponds to that of 17 July 2014, and, assuming that date, the video was recorded between 11:06 and 11:17. ^[345] Further examination also confirmed the place, date and time of the video recording. ^[346] Examination by the NFI in response to allegations of forgery from the Ministry of Defence of the Russian Federation concluded that there is no evidence of manipulation nor falsification of the video footage. ^[347]

11:31: ^[348] Kharchenko instructs someone to collect all the men, including Dikson, then go to Pervomaiskyi and wait for Kharchenko there. Kharchenko will be there soon.

Zuhres Video. ^[349] This video was taken from an apartment building in Zuhres located next to and overlooking Highway H21, the through road from Makiivka to Snizhne via Torez. ^[350] According to witness G9081, the video shows an SA-11 air defence system (court: the NATO designation for a Buk TELAR) and a flatbed trailer used to transport those systems. ^[351] The court can also see this on the images. According to the KNMI, the weather pattern in the video corresponds to that of 17 July 2014, and, assuming that date, the video was recorded between 11:27 and 11:43. ^[352]

Intercepted phone calls and visual material on the afternoon of 17 July 2014

Torez Video. ^[353] This video was taken on 17 July 2014 in Torez, possibly around 12:00, and shows several vehicles, including a white truck with a red trailer carrying a Buk air defence system. ^[354] The truck in the images bears striking similarities to the one shown in the Paris Match photo mentioned above. ^[355] In addition, similarities can be seen at six points between the Buk in this video and one of the Buks seen in video recordings of a military convoy observed in the Russian Federation on 23, 24 and 25 June 2014. No notable differences are observed. ^[356]

Torez Photo. ^[357] This photo was taken from the grounds of a petrol station located on Prospekt Gagarina in Torez, also called H21, and, according to witness G9081, shows a truck with a red flatbed trailer and Buk TELAR. ^[358] The court can also see this on the image. According to the KNMI, the weather pattern in the photo corresponds to that of 17 July 2014, and, assuming that date, the photo was taken between 12:34 and 12:47. ^[359] This time does not line up with the 12:42 phone conversation mentioned below, in which Kharchenko says he is at the Furshet in Snizhne. In fact, the Furshet is still fourteen minutes away from where the photo was taken, so in order for the convoy to actually reach the Furshet at 12:42, it must have left from that spot no later than 12:28. However, the court finds no reason to doubt the entire timeline based on this discrepancy of only six minutes. Indeed, it can be inferred from other sources that the flatbed trailer had passed through Torez a little earlier. ^[360] The argument that this very fact would mean that multiple Buk TELARs may have been transported that morning is not credible. After all, it is completely implausible that several similar Buk TELARs were transported on multiple identical flatbed trailers in a similar convoy, in short succession, when no one is reporting or talking about it.

12:39: ^[361] Dushman asks Sanych where to drive those iron things. To Stepanivka, is the answer, but call Krot; he is already behind you.

12:42: ^[362] Kharchenko calls Pulatov and informs him that he is with the ‘toys’ at the Furshet in Snizhne. Pulatov says he is on his way there now.

12:51: ^[363] Kharchenko gets a call from Pulatov. Pulatov says he has arrived at the Furshet and cannot see anyone. Kharchenko says he is also at the Furshet and asks if Pulatov cannot see the trailer. After loud honking in the background, Pulatov sees Kharchenko.

13:09: ^[364] Kharchenko calls Zmey and explains to him where they will meet: in the area near the checkpoint beyond Snizhne and before Stepanivka, at Pervomaiske.

Snizhne Photo. This photo, attached to a Tweet posted at about 14:37 on 17 July 2014, shows a self-propelled Buk TELAR, with camouflage net. This photo shows a self-propelled Buk TELAR on Karapetian Street in Snizhne, not far from the Furshet, travelling eastbound. ^[365] According to the KNMI, the weather pattern in the photo corresponds to that of 17 July 2014, and, assuming that date, the photo was taken between 13:07 and 13:33. ^[366]

Snizhne Video. ^[367] The video shows a Buk TELAR driving on Gagarina Street, heading south towards Pervomaiske, Pervomaiskyi and Savur-Mohyla. ^[368] According to the KNMI, these coordinates are correct, and it can be concluded that if the video was recorded on 17 July 2014, it must have happened between 13:12 and 13:57 local Ukrainian time. The cloud pattern in the video matches the cloud pattern in that area on 17 July 2014. ^[369] Research by the NFI – and verification of this with Google, in response to Russia's comment that this video footage was faked because of an incorrect date stamp – concluded that it cannot be determined when this video was recorded, but that it was most likely uploaded a few minutes before the time stamp listed of 17 July 2014 at about 16:42:05. The incorrect date stamp, on which Russia based its claim that the video was faked, was caused by a programming error at YouTube, which Google has confirmed. Thus, there is no indication that the video might have been uploaded earlier, say on 16 July 2014. ^[370] In response to another allegation by Russia that the video was faked because the TELAR was allegedly pasted into it, the National Forensic Centre of the Swedish Police investigated and concluded that technical, aural and visual inspection show no indication of manipulation, and that those investigation results are between 6,000 and 1,000,000 times more likely if the vehicles were already present in the video when it was made, than if the vehicles were pasted into the video later. ^[371]

13:35 - 14:02: According to historical telecom records of the phone number ending in -6335, that number connected to a mast on Gagarina Street in Snizhne between 13:35 and 14:02. Between those times, Pulatov calls that number three times, but no call is established. However, a 60-second call is made to 14th by the user of this number at 14:00. ^[372]

14:07: ^[373] Kharchenko calls Zmey. Kharchenko tells Zmey to guard the vehicle that is a little further in the field. Person unknown Altai will also come, and then they have to spread the vehicles in the dense thicket until Kharchenko arrives. Kharchenko is going to collect Ryazan and then come back here, and we will see how things develop.

14:10: ^[374] Kharchenko gets a call from Ryazan. Kharchenko says he is about to go to Snizhne. Ryazan should wait for him in the shade by the roundabout near Furshet.

14:33: ^[375] 14th has a question for person unknown about the guests, as reported yesterday on behalf of Taiga. 14th wants to minimise the time lag between when person unknown receives information and when he passes it on to 14th. Therefore, 14th would prefer that Taiga communicate directly with him. This is exactly what person unknown also wants, which is why he established direct communication between Taiga and 14th.

14:34: ^[376] 14th asks Taiga to call him immediately if he has any information regarding the guests. Because we are all already waiting, says 14th. No guests are expected at this time, says Taiga.

15:07: ^[377] When Girkin asks Tor what the situation is there, Tor replies that he has handed Marynivka over to Cap, that he is withdrawing his men from Marynivka, and that they are holding out in Stepanivka. Girkin instructs Tor to dig in, as they are bringing three more Grad batteries Tor's way. Girkin asks Tor how many armoured vehicles Cap has there. Tor says three tanks have just passed by, citing the name Giurza. Tor further informs Girkin of the total number of tanks, where they are and how many are broken.

16:20 Flight MH-17 crashes. ^[378]

16:22: ^[379] Dushman tells person unknown Kombat ^[380] that today he deployed his tanks at Marynivka, Stepanivka and Dmytrivka, that yesterday they tried to bomb from four thousand metres and did not dare to go lower to avoid being destroyed by Manpads, and that today a Buk was positioned and we are now going to shell them with missiles.

16:35: ^[381] Person unknown says to person unknown Nikolay Ivanovich that men from Snizhne shot down an aeroplane that crashed near Hrabove fifteen minutes ago. Person unknown's men are searching for the pilot.

16:48: ^[382] Kharchenko reports to Dubinskiy that they are on location and have already downed one Sushka. Well done, is Dubinskiy's response. Dubinskiy orders Kharchenko to come to ‘here’ that evening; Pulatov will also come here. Kharchenko must then leave one company behind to protect the Buk.

17:16: ^[383] Dubinskiy asks Kharchenko if the Buk is safe from Grad fire. Kharchenko says they are out of range.

17:42: ^[384] Botsman tells Dubinskiy that an aeroplane was shot down and that he will go get the boxes and give them to Dubinskiy if necessary. ""
And you will hand those over afterwards, right? "We", says Dubinskiy,
"have also just now brought down a Sushka, over Savur-Mohyla. We did get a Buk M this morning; that makes a big difference. My boys are also looking for the black boxes now." Dubinskiy says he is now in Marynivka, that they are being bombarded non-stop by Grads and have suffered very substantial losses. He is waiting now, as Russia would pound their positions from its side. Dubinskiy has to be back in Donetsk in two hours.

Intercepted phone calls made on the evening of 17 July 2014

18:20: ^[385] Dubinskiy tells person unknown that his men brought down a Sushka near Savur-Mohyla. The person unknown man says the media keeps harassing him about a Boeing that crashed. Dubinskiy doesn’t know anything about that.

18:28: ^[386] Nos says Girkin's assistant must inform the commander that the downed aeroplane is a Boeing. Russia 24 wants to quickly spread the suggestion to the world that the Ukrainians did this to blame the militia.

18:40: ^[387] Grek is told by person unknown Shmel that a foreign passenger aeroplane has been hit by a Sushka. Bezler is present in the background and also hears this message.

18:44: ^[388] Kharchenko calls Pulatov. Pulatov inquires about our Buk, to which Kharchenko answers that everything is fine and that the Buk has been moved. Pulatov says the Sushka had shot down a Chinese passenger aeroplane, and immediately after that we caught up with the Sushka. The whole world will be talking about it now. Kharchenko says we were working on the Sushka. Pulatov wants a comprehensive evaluation of the situation that took place. Most importantly: tell
that one ... Pulatov is driving into Torez, and Kharchenko is to come to Torez with some men and then receive further instructions.

19:01: ^[389] Koreets calls Pulatov: Pulatov tells Koreets that Koreets' ‘blood-brother’ shot down a Sushka which had shot down a civil aircraft just before.

19:28: ^[390] Kharchenko reports to Pulatov that he is in Rozsypne. There's no point in doing that, Pulatov says, you'd better drive on to Hrabove; you'll see the smoke in the distance.

19:35: ^[391] Koba tells person unknown Vova that a passenger aeroplane was just shot down and when asked who did it, responds:
"Who could do it? Who has access to a Buk? Not Ukrops. Strelkov, damn it!"

19:52: ^[392] Dubinskiy orders Pulatov to come to the base; Kharchenko has to stay there. Pulatov interrupts Dubinskiy and says he is now at the spot where the aeroplane crashed, but will return. Pulatov answers the question of whether our Buk fired, that the Buk shot down the Sushka after the Sushka shot down the Boeing. His men saw that; Pulatov himself was in Marynivka.

19:54: ^[393] Dubinskiy wants to see Girkin very urgently and tells him that Pulatov just reported that the Sushka shot down the Boeing, then wanted to attack again, but was then shot down by our people with a Buk. Girkin doesn't really believe this account. Dubinskiy says he has recalled Pulatov and that Kharchenko will remain on location. Girkin tells Dubinskiy to take care of it properly.

19:59: ^[394] Dubinskiy says Kharchenko should allow the OSCE people access to the crash site and asks if Kharchenko is sure that people saw that ‘it’ was hit by a Sushka, or whether it was not the work of ‘our’ people after all. Kharchenko confirms that the Sushka did it. Dubinskiy understands and asks if it is correct that the Sushka was then hit by our people with a Buk. Kharchenko replies: first there was a bang in the sky, and then there was our bang.

20:30: ^[395] Because of the aeroplane, Girkin doesn't have the opportunity, so therefore Dubinskiy must arrange for the "damaged tank we have that needs to be evacuated", the box being guarded by Kharchenko, to be escorted to the border of the province by a couple of APCs. A group is coming with a trailer and a crane to collect it.

20:32: ^[396] Dubinskiy tells Kharchenko that a lowboy will come for the box we have there and that two APCs should escort the box to our regional border.

20:41: ^[397] Kharchenko gets a call from Zmey. Zmey reveals that ‘the box’ is being taken away by strangers, and he asks if he should escort it. Kharchenko, cursing, tells Zmey to leave it there; Kharchenko will collect it.

20:54: ^[398] Zmey reports to Kharchenko that it is being escorted by a vehicle and an ack-ack and that they said it is being guarded by his people. It went to town. Let it go there, says Kharchenko.

21:13: ^[399] Kharchenko tells Dubinskiy that ‘the box’ was already gone when he returned from the crash site; ‘the box’ left under its own power and is now in Snizhne. It’s sure it’s not going to drive to its destination under its own power though. The guys with the trailer are asking Kharchenko to come, and Kharchenko is going to do that. Dubinskiy says he will ask Girkin what they should do next. He does still tell Kharchenko to leave it in Snizhne.

21:32: ^[400] Ryazan calls Kharchenko. He reports that one of the crew members of the Buk lost the rest of the crew. The crew member is at the checkpoint. Kharchenko instructs Ryazan to take the crew member to Snizhne.

21:40: ^[401] Kharchenko calls Pulatov. Kharchenko asks if Pulatov can get in touch with the fighters of that new box. They forgot one of their fighters, who is now with Kharchenko. Kharchenko is at Furshet, but they are not there. Pulatov is going to try to contact them.

21:42 - 21:53: According to historical telecom records, four calls were made by Pulatov between 21:42:18 and 21:53:34 to the phone number ending in -6335. The location of that phone number at the time is unknown. ^[402]

21:47: ^[403] Mongol tells his wife that ‘we’ shot down the Boeing, but it was an accident.

22:35: ^[404] Kharchenko asks Dubinskiy where he needs to be escorted to. Dubinskiy answers: up to the border with Luhansk province, then they will drive on by themselves.

23:05: ^[405] Girkin has someone ask Dubinskiy if the ‘damaged tank’ has already started to move. Dubinskiy is coming up now.

23:12: ^[406] Kharchenko tells Dubinskiy that it is still in Snizhne and has just driven onto the platform. Kharchenko will take it as far as Debaltseve, but Dubinskiy says Kharchenko doesn't have to do that, that it should be the boys that do it. Dubinskiy will call him back in a moment.

23:14: ^[407] Dubinskiy tells Kharchenko to go from Snizhne to an intersection north of Krasnyj Luch and wait there for an escort that has just left Luhansk.

23:27: ^[408] Person unknown Vega tells Koreets that electricians are working on that Strela. Giurza told person unknown Vega to report to the commander. Person unknown Vega did that, and the commander wrote down on the piece of paper everything concerning Pervyi, concerning Strela and all that. Person unknown Vega also adds that too many people saw our vehicle today. Koreets doesn't care; no one will fly there for now. A Ukrops Sushka downed a Boeing. And immediately afterwards we took down the Sushka. Yes, so that big missile flew behind it.

23:32: ^[409] Kharchenko says his men have left. Dubinskiy asks him for the senior's phone number; who is going to be called by those from Luhansk. Kharchenko gives Dubinskiy the number ending in -5784, of ‘Leshy’ the driver. Kharchenko has to call Leshy quickly to say that ‘he’ is already entering Krasnyj Luch and that Leshy should clearly arrange where they will meet.

23:34: ^[410] [Name 5] is called by Plotnitskiy. A Carpathian tree guarded by two APCs needs an escort from the intersection at Krasnyj Luch to the border at Severniy. The convoy will be awaited there. Fuel is also needed for the APCs, as they are running out.

Intercepted phone calls made 18 July 2014

00:23: ^[411] Boks reports to Dubinskiy that Pulatov is back and that as for today's breaking news, they have found the flight recorders.

00:25: ^[412] Pulatov tells Dubinskiy that the box he has is from that foreign machine. And just to be safe, that box was sent to Boks's men.

01:26: ^[413] Not Leshy, but someone calling himself group leader says over Leshy's phone that those responsible for the shipment are Starshyi, Chernyi and Bibliothekar. According to them, no one is supposed to meet the shipment.
Fuck , is the response; this was all arranged through the Minister of Defence. We are moving slowly along the route we know; the route that was used to transport machinery here. We are now taking them to a position before Debaltseve.

07:17: ^[414] Kharchenko says to someone in the room he is in:
"Everything is ok. The vehicle has already reached Russia."

07:41: ^[415] Dubinskiy furiously asks Kharchenko what happened yesterday with Leshy; it was a mess. Kharchenko said they took the vehicle as far as the intersection, and then the boys continued on their own in the right direction, arriving successfully. There were lots of incoming calls on Leshy's phone from people introducing themselves, one after another, and then later also Girkin. At some point, Leshy turned off the phone. Dubinskiy does not know where the vehicle is now. Kharchenko says it has arrived in Russia.

07:44: ^[416] Dubinskiy tells Girkin that he has just returned and says that ‘he’ received calls from as many as eight people and therefore turned off the phone. He was not returning the vehicle himself at all, but immediately handed it off to those awaiting the vehicle, to our people at the intersection. The vehicle reached Russia ages ago. However, Girkin says the point is that they say they have not met them. Girkin is going to look into this further.

08:00: ^[417] Girkin tells Dubinskiy to have Leshy go and see Girkin immediately, because the group of people who were supposed to receive the car came back without one.

08:01: ^[418] Dubinskiy orders Kharchenko to come to Dubinskiy with Leshy because the person who was supposed to meet the vehicle has returned without one. Kharchenko says Leshy gave the vehicle to Bibliothekar. That group brought it back on the lowboy. Kharchenko has just been in contact with them: they are already in Russia and are bringing back a new vehicle from Russia. Now Dubinskiy understands.

08:02: ^[419] Dubinskiy asks Bibliothekar if he received the box from our people last night and if he had removed it. Bibliothekar confirms this and says it is there now, in that area. He will come by later to explain; it was quite complicated.

08:03: ^[420] Dubinskiy tells Girkin that Leshy handed it off to Bibliothekar and Bibliothekar took it there personally. It's been there for a long time.

10:50: ^[421] Mongol tells Dubinskiy that the OSCE mission asked the DPR authorities if they could be escorted to yesterday's crash site. Mongol just provided them with an escort. The group does include four Ukrainian aviation experts. Dubinskiy responds by saying that ‘we’ won't do anything there. Let them go. There are at least two boxes; yesterday evening, the first, and last night my men found the second.

11:22: ^[422] Kharchenko asks Dubinskiy if he has sorted out this vehicle; is everything okay? Dubinskiy says he and Girkin have been yelling at each other but that it is now clear.

Appendix 4: Decisions on each individual claim for compensation

This appendix consists of:

Appendix 4.1: decisions on claims by CfR member A1;

Appendix 4.2: decisions on claims by CfR member A2;

Appendix 4.3: decisions on claims by CfR member A3;

Appendix 4.4: decisions on claims by CfR member A4;

Appendix 4.5: decisions on claims by CfR member A5;

Appendix 4.6: decisions on claims by CfR member A6;

Appendix 4.7: names of the two injured parties with claims not submitted by counsel for the relatives.

PLEASE NOTE, THIS IS A TRANSLATION. THE JUDGMENT IN DUTCH IS LEADING.

Voetnoten

1. The court uses the personal names as recorded in Primo 10779 and the place names as recorded in Primo 06863.

2. This was a scheduled day in court that was no longer required for the trial.

3. In addition to the difference concerning functional perpetration stated hereafter, the principal variant also includes “..., or alone, ...”

4. Official Gazette 2018, 263.

5. Decree on court locations dated 27 November 2012.

6. Parliamentary paper 33 997, No. 124.

7. Treaty between the Kingdom of the Netherlands and Ukraine on international legal cooperation regarding crimes related to the downing of Malaysia Airlines flight MH17 on July 17, 2014 (Treaty Bulletin 2017, 102), concluded between the Netherlands and Ukraine in Tallinn on 7 July 2017, in accordance with the provisions of Articles 6 and 43 of the European Convention on the Transfer of Proceedings in Criminal Matters. On 25 August 2018, in implementation of this convention, the Act of 11 July 2018, containing provisions related to the prosecution and trial in the Netherlands of offences related to the downing of Malaysia Airlines flight MH17 on 17 July 2014, entered into force (Bulletin of Acts and Decrees 2018, 263).

8. In accordance with Article 6(1) of the Tallinn Convention, by letter dated 19 June 2019, the Dutch authorities invited the Ukrainian authorities to submit a request to transfer the criminal proceedings. In response, by letter dated 23 July 2019, the Ukrainian authorities asked the Dutch authorities to take over the criminal proceedings. By letter dated 22 August 2019 from the Minister of Justice and Security, this request was granted.

9. The information in this and the following paragraphs and sub-paragraphs is based on the following parts of the Context File: official reports on Combatant Parties (Primo-04502), Classification of Conflict (Primo-06764), Russian Involvement in the Conflict in Eastern Ukraine (Primo-05427), OSCE (Primo-02258), and Internal Disciplinary System and International Crimes in the ‘Donetsk People's Republic’ (Primo-12062), as well as the underlying documents and associated appendices. This information is also based on the content of intercepted and recorded telephone conversations, as included in the case file.

10. ICTY, Prosecutor v. Tadić aka "Dule," Appeals Chamber Decision, IT-94-1-AR72, Oct. 2, 1997, §70.

11. Section 359a DCCP in conjunction with the third clarification ruling on procedural defects and legal consequences under Section 359a DCCP, SC 1 December 2020 (ECLI:NL:HR:2020:1890), paras. 2.2.2, 2.4.4 and 2.6.1.

12. Third clarification ruling on procedural defects and legal consequences under Section 359a DCCP, SC 1 December 2020 (ECLI:NL:HR:2020:1890), para. 2.5.2.

13. Prime Minister of the Netherlands, Members of the Dutch House of Representatives and the Dutch Safety Board.

14. E.g. ECtHR 29 January 2019

15. Or very shortly before, when they received the notification from the investigating judge regarding the pending Section 226a DCCP proceedings.

16. Several first-person rulings cited in Th. Cellar, Traces in Criminal Law 2014, Case law on the dismissal of mini-instructions.

17. Act dated 1 December 2011 (Bulletin of Acts and Decrees 2011, 600), entered into force on 1 January 2013.

18. Whether any such request was made to the Ukrainian authorities cannot be verified by the court in the absence of documents relating to it in the case file. As Ukraine was a JIT partner, no requests for legal assistance would be made to that country. It is worth noting in this regard, however, that, according to his personal file, the accused Kharchenko has been untraceable since August 2014 and his whereabouts are not known to the Ukrainian authorities. Under those circumstances, a request to question the accused would have been futile.

19. Whereby the court notes that there is a difference between the existence of an official document setting out suspicions and a person being designated as a suspect. The latter is the formal act by which a suspect is notified that he is a suspect; the former is rather an internal working conclusion, in part to enable certain investigative steps to be conducted. It is precisely because of the significance of those investigations that the suspect is not yet informed of the suspicions against him. Providing documents at that time would be counter-productive.

20. Dutch Safety Board Act, Chapter 5, Section 5.

21. Dutch Safety Board-Public Prosecution Service Coordination Protocol (Netherlands Government Gazette 2008, 45, entered into force on 1 March 2008).

22. Official record of the hearings on 13 and 16 September 2021, including Appendix A thereto.

23. In this case Primo-10519 and Primo-10519.

24.

25. At the time of signing the JIT agreement in August 2014, Section 552qb DCCP was still in effect, but its text is the same as Section 5.2.2 DCCP.

26. See SC 5 October 2010 (ECLI:NL:HR:2010:BL5629).

27. The court is referring here to ‘eyewitnesses’, not to experts and investigating officers who conducted technical investigations, for example, and who in that capacity combine their own observations as witnesses with technical knowledge and background knowledge.

28. See,

29. On this subject, see the annotation by T. T. Kooijmans under ECtHR 1 June 2017, No. 24705/16, No. 24818/16 and No. 33893/16 (

30. SC 20 April 2021 (ECLI:NL:HR:2021:576).

31. ECtHR 19 January 2021, No. 2205/16 (

32. SC 20 April 2021 (ECLI:NL:HR:2021:576).

33. SC 13 September 2022 (ECLI:NL:HR:2022:1198).

34. For the roadmap, see ECtHR 15 December 2011, Nos. 26766/05 and 22228/06 (

35. ECtHR 10 July 2012, No. 29353/06 (

36. ECtHR 10 April 2012, nos. 46699/06 and 46099/06 (

37. ECtHR 17 November 2020, No. 59453/10 (

38. Or in court, but that is not the case here.

39. Section 360(1), second indent, DCCP.

40. Section 344a(2), DCCP.

41. It is noted that this Code of Conduct was repealed on 6 February 2019. However, the reason for this is not that the content of the Code of Conduct is no longer relevant, but rather an administrative one: due to a change in the law, listing the Code of Conduct on the NRGD’s website counts as a required method of publication, making an arrangement involving publication in the Government Gazette no longer necessary. Therefore, the standards contained in the Code of Conduct continue to apply.

42. Ministerial Regulation BWBR0031558, effective 19 May 2012.

43. Primo-06467, p. 8062, Primo-12484, p. 12489, and Primo-07058, p. 18.

44. Primo-07058, p. 24 (mere conclusion, citing Primo-05963 (not included in file)) and Primo-12484.

45. Primo-10981, p. 11401 to 11427, Primo-10981a, p. 16491 to 16512, and Primo-10981b, p. 16932 to 16948.

46. Primo-04398, p. 3537 and 3538, respectively, Primo-02660, p. 1772 and 1773, and Primo-07058, p. 22.

47. Primo-05576, p. 4908 and 4909 and Appendix 2 thereto. More technical detail: Primo-05654, p. 1 to 56.

48. Primo-07058, p. 10 and 16, and Primo-00003, p. 82.

49. English translation of the Expert Report produced by the Lithuanian Forensic Expertise Centre dated 22 October 2021, p. 5 and 6, with appendices.

50. Primo Project Report - Cell-Site Evidence dated 28 February 2022, submitted with pleading notes Part V.I - Evidence 3 - Actual conduct, at the hearing on 25 March 2022.

51. Intercepted conversation on 17 July 2014 at 12:51:09.

52. Primo-02378, p. 93 and 94, read in conjunction with Appendices 18 (Kharchenko mast data) and 4 (Pulatov mast data) to Primo-14912.

53. Video Buk TELAR in Snizhne: Forensic expert report - Video Authenticity, Swedish National Forensic Centre (NFC), 31 March 2021. Photo Buk TELAR in Donetsk: Forensic expert report - Image Authenticity, Swedish National Forensic Centre (NFC), 31 March 2021.

54. Primo-05982 (LTFO), p. 4.

55. Primo-02356, p. 43, in conjunction with Primo-06212, p. 7432 and Appendix 1.

56. Primo-04263, p. 166, and Primo-03002, p. 133.

57. Primo-03002, p. 136.

58. Primo-02421, p. 1393.

59. Primo-01483, pp. 958─960, and Primo-00804, pp. 198─300.

60. Primo-08673, p. 1947.

61. Appendix 1 to Primo-05824, pp. 6233─6236, in conjunction with Appendix 1 to Primo-02148, p. 1264, and Appendix 6 to Primo-03002.

62. Appendix 1 to Primo-02148, p. 1266.

63. Appendix 30 to Primo-03752, p. 2764.

64. Primo-02775, pp. 1838─1845.

65. Primo-02356, p. 59, Primo-01120, p. 390, Primo-05388, p. 4424, and Appendix 18 to Primo-01120.

66. Primo-06751, pp. 8369 and 8370, and Primo-02356, Figures 12 and 13 on p. 18 (corresponds to 16:22:23 and 16:22:33 Ukrainian summer time).

67. Appendix 3 to Primo-07871A, p. 534.

68. Appendix 1 to Primo-13327,, p. 12640.

69. Primo-13386, pp. 13136─13145.

70. Primo-13386, pp. 13146.

71. Primo-02356, p. 60.

72. Primo-13386, pp. 13146.

73. Primo-14143, pp. 1729.

74. Official report IJ interview witness M58 dated 30 November - 3 December 2020, pp. 17, and Primo-14143, p. 1744.

75. Official report IJ interview witness M58 dated 30 November - 3 December 2020, Appendix 1, map 12.

76. Appendices 9 and 9A to Primo-14138.

77. Official report IJ interview witness M58 dated 30 November - 3 December 2020, pp. 18, and Primo-14143, pp. 1741 and 1746.

78. Appendix 7 to Primo-14139.

79. Primo-02389, p. 13.

80. Primo-14138, p. 1365, and Official report IJ interview witness M58 dated 30 November - 3 December 2020, pp. 26 and 40.

81. Official report IJ interview witness M58 dated 30 November – 3 December 2020, p. 26.

82. Primo-14143, pp. 1753 and 1754, Primo-14138, pp. 1365, 1368 and 1370, Official report IJ interview witness M58 dated 30 November - 3 December 2020, pp. 26.

83. Primo-14143, pp. 1754 and 1786, Primo-14138, p. 1366 (https://dossier-zm.local/Documenten/Kast03/Algemeen%20dossier/Bijlagendossier%20Getuigen/02%20Getuigen%20149b%20Sv/Getuige%20M58%20Alyoshin/09.%20Primo-14138%20PV%20verhoor%2030%20april%202019.pdf), Official report IJ interview witness M58 dated 30 November - 3 December 2020, pp. 23, 24, 29 and 30.

84. Primo-14142, p. 1684.

85. Primo-14053, pp. 15621─15674.

86. Primo-14053, pp. 15634.

87. Primo-14053, pp. 15647.

88. Primo-14053, pp. 15636 and 15637.

89. Primo-14053, pp. 15632.

90. Primo-14053, pp. 15626.

91. Primo-14053, pp. 15651 and 15652, and intercepted conversation on 8 July 2014 at 15:07:54.

92. Primo-14143, pp. 1729.

93. Primo-14140, p. 1615, and Appendix 12 to Primo-14140.

94. Primo-14131, p. 1287.

95. Primo-13963 and Primo-14053, pp. 15662 and 15663.

96. Appendix 12a to Primo-14139.

97. Primo-05197, Todesflug MH17 Report, 27.02 minutes.

98. Primo-14053, pp. 15660.

99. Primo-09910, pp. 10891 and 10892, and Primo-02733, pp. 1605–1607.

100. Primo-00830, p. 452, and the official record of IJ’s interview of the British journalist dated 5 and 6 July 2021, pp. 20 and 22, and Appendices 9, 11 and 12.

101. Primo-06762, p. 42, and Primo-06191, p. 686.

102. Primo-07419, p. 9440, Primo-02733, p. 1606, and Primo-13911, pp. 15401 and 15402.

103. Appendix 1 to Primo-05835, p. 6284.

104. Intercepted conversation on 17 July 2014 at 09:31:30 between Dubinskiy and Pulatov; intercepted conversation on 17 July 2014 at 09.54:08 between Dubinskiy and Kharchenko; intercepted conversation on 17 July 2014 at 09.55:20 between Dubinskiy and Pulatov; intercepted conversation on 17 July 2014 at 11:31:21 between Kharchenko and an unknown person.

105. Images 3 and 4 (pp. 10 and 11), images 7, 8, 9, 11, 12 and 13 (pp. 14–20) in Primo-02378, Primo-07273, p. 8977, and Primo-09656, pp. 10645 and 10646, read in conjunction with Appendices 34 (-1455), 40 (-7583) (Bibliothekar’s transmission mast data) and 1 (-0785 transmission mast data) to Primo-14912. Also the intercepted conversation on 17 July 2014 at 09:08:26 and the intercepted conversation on 17 July 2014 at 09:22:19.

106. Primo-09066, pp. 10392–10394 and Appendices 1, p. 10397 and 3, p. 10399 to this judgment. Also Primo-02378, pp. 67–70, 76, 77, 79, 90, 102, 103, 117, 118, 120, 121, 132, 133 and 139, read in conjunction with Appendices 18

107. Intercepted conversations on 17 July 2014 at 11:31:21, at 11:36:16, at 11:41:33, at 12:42:57, at 13:09:27 and at 14:07:30.

108. Volvo flatbed trailer, with a white cab with a blue stripe, yellow sign with black numbers on the side and a red trailer.

109. Primo-06191, p. 683.

110. Respectively: intercepted conversations on 17 July 2014 at 16:48:44, at 18:44:37 and at 19:54:17.

111. Primo-02520 XX02389. Specification of date and time in Primo-04064, p. 16895, and Appendices 1 and 2 thereto, and Appendix 1 to Primo-05819. Authenticity analysis in Primo-12574, pp. 13113–13115 and 13123.

112. Primo-05670.

113. Appendix 1 to Primo-02148, pp. 1268 and 1269.

114. Intercepted conversation on 17 July 2014 at 20:30:52.

115. Intercepted conversation on 17 July 2014 at 20:32:44.

116. Intercepted conversation on 17 July 2014 at 23:14:47.

117. Intercepted conversation on 17 July 2014 at 23:32:34.

118. Primo-07946, pp. 723–727.

119. Primo-02389, (https://dossier-zm.local/Documenten/Kast03/Zaakdossier/04%20Afvoerroute/Primo-02389%20Relaas%20proces-verbaal%20dossier%20Afvoerroute.pdf) p. 53–55 and pp. 60–62.

120. Intercepted conversation on 18 July 2014 at 08:02:43 and at 08:03:44.

121. Primo-02389, p. 65, read in conjunction with Appendices 34 (-1455) and 40 (-7583) (Bibliothekar’s transmission mast data) to Primo-14912.

122. Primo-10995, p. 23, and Primo-08495, pp. 10062–10068.

123. Primo-02520 XX02389, three rockets visible at 00:06–00:09 seconds, and Primo-08495, p. 10063.

124. Primo-07832 XX02378, four rockets seen at 00:52 seconds.

125. Primo-4162, figure 13, p. 835, and Primo-3956, p. 788.

126. Primo-4162, p. 835.

127. Primo-4162, figure 1 (right), p. 826.

128. Primo-02746, p. 1705, Primo 12257, p. 12284, and 12285, Primo-04928, p. 3814 and 3815, and Primo-07626, p. 9520.

129. Primo-12290, pp. 3127 et seq., with appendices, pp. 3130 to 3138.

130. Primo-6049 (FO appendix file), p. 1181.

131. Primo-6049 (FO appendix file), p. 1179.

132. Primo-9427, p. 2592.

133. Primo-8192 (Ukraine 2014-2015), Primo-8648 (Ukraine 2016) and Primo-8909 (Finland). An overview is added as a schedule in Primo-9427, p. 2573; Primo-3956, p. 799, official record of expert witness interview by IJ RC07 dated 29 April 2021, p. 8, Answers to IJ’s written questions 07 of 1 April 2021, p. 4.

134. REPORT on Research Related to Technical Investigation into Accident Involving Boeing 777-200 9M-MRD Passenger Aircraft of Malaysia Airlines Crashed on July 17, 2014 During Flight MH17 from Amsterdam to Kuala Lumpur, Moscow 2020, p. 133.

135. Primo-12419, pp. 3212.

136. Identified by a weight higher than 2.5 grams (slightly higher than the original weight of a square destructive element of 2.35 grams).

137. Primo-12419, pp. 3217.

138. Primo-3956, p. 788.

139. Official record of joint IJ interview of expert witnesses dated 7 May 2021, p. 12.

140. Primo-09814, p. 18757.

141. Primo-05388, p. 4425.

142. SIN AAHZ4490NL#1, Primo-3956, p. 790, weight 6.1 grams.

143. Primo-3956, p. 799 (item 3).

144. Primo-12290, pp. 3127 et seq., with appendices, pp. 3130 to 3138.

145. Primo-12419, pp. 3234 and 3235.

146. Primo-12257, pp. 12286 to 12288.

147. Primo-6937, p. 1313.

148. Primo-7626, pp. 1985.

149. Primo-7626, pp. 1983 to 1990, photos 513 to 637 in Courtbook Morrell.

150. Official record of joint IJ interview of expert witnesses dated 7 May 2021, p. 10.

151. Primo-9126, p. 2516.

152. Primo-6418, p. 1209.

153. Primo-7626, pp. 1983 to 1990.

154. Primo-9126, p. 2516.

155. Official record of joint IJ interview of expert witnesses dated 7 May 2021, p. 8.

156. Primo-06191, p. 4 and 5, Primo-04329, pp. 31 and 32, Official report IJ interview RC02 dated 23, 24 and 25 November 2020, p. 35, Primo-05332, pp. 1 and 8, Primo-05332, photo 3, p. 4 and Primo-02356, p. 55.

157. Primo-06191, p. 4.

158. Official report IJ interview witness RC02 dated 23, 24 and 25 November 2020, p. 35.

159. Primo-05332, pp. 4 and 5.

160. Official record of joint IJ interview of expert witnesses (with appendices) dated 7 May 2021, p. 1–148.

161. Official record of joint IJ interview of expert witnesses dated 7 May 2021, p. 77 and pp. 144–145.

162. Primo-07670, pp. 1–24.

163. Appendix 3 to Primo-06462, paragraph 6.

164. Primo-06762, Chapter 6, pp. 68–77.

165. Primo-06655, pp. 1─40 and Primo-04672, pp. 1─28, each with appendices.

166. Appendix 117 to Primo-06655, p. 620, and Primo-04672, p. 6, map 2.

167. Primo-05426, p. 5 of 10.

168. Primo-03482, pp. 2178.

169. Primo-03482, pp. 2178 and 2179, Primo-13516, p. 13622, Primo-07441, p. 9454 and Primo-06561, p. 8177.

170. Primo-06446, pp. 12─14, Primo-12269, pp. 12301 and 12302, Primo-12412, pp. 12413 and 12419, and Primo-14188, pp. 16586─16589.

171. Primo-02173, p. 1289.

172. Primo-10384, p. 11194.

173. Appendix 1 to Primo-12269, pp. 12304 and 12305.

174. Primo-11570, p. 11905.

175. Primo-04044, pp. 766 and 771.

176. Primo-07584, pp. 1.

177. Primo-09862, p. 1896.

178. Primo-02894, pp. 1877 and 1881, and Primo-03334, p. 2054.

179. Primo-07584, pp. 7 and 19, and intercepted conversation on 16 June 2014 at 12:56:35.

180. Intercepted conversation on 7 March 2015 at 22:03:17 and intercepted conversation on 8 March 2015 at 18:45:56.

181. Primo-07733, p. 5, and Primo-14266, p. 5.

182. Translation of the official record of the videos of Pulatov and Dubinskiy attached to the file, prepared by the investigating judge on 15 January 2021, pp. 82, 87 and 88.

183. Primo-05841, pp. 6317, 6322, 6329─6331, and 6334.

184. Translation of the official record of the videos of Pulatov and Dubinskiy attached to the file, prepared by the investigating judge on 15 January 2021, pp. 36 and 37.

185. Translation of the official record of the videos of Pulatov and Dubinskiy attached to the file, prepared by the investigating judge on 15 January 2021, pp. 38 and 39.

186. NFI Report dated 29 July 2021, Comparative voice analysis of fourteen recordings of telephone conversations, p. 16.

187. Translation of the official record of the videos of Pulatov and Dubinskiy attached to the file, prepared by the investigating judge on 15 January 2021, pp. 75─83 and p. 95.

188. Translation of the official record of the videos of Pulatov and Dubinskiy attached to the file, prepared by the investigating judge on 15 January 2021, pp. 87, 89 and 90.

189. Translation of the official record of the videos of Pulatov and Dubinskiy attached to the file, prepared by the investigating judge on 15 January 2021, pp. 23, 25, 31, 63, 64, 68 and 97─99.

190. Primo-10072, p. 5.

191. Primo-10072, p. 5, Primo-03608, pp. 2283─2288, Primo-03801, pp. 2910 and 2911, and Primo-12637, p. 13424.

192. Primo-08294, p. 10021.

193. Primo-03608, pp. 2283 to 2288.

194. Appendix 2 to Primo-03801, p. 2915.

195. Primo-13333, p. 12644.

196. Primo-03801, pp. 2910 and 2911, and Appendix 2 hereto, p. 2915.

197. Intercepted conversation on 6 July 2014 at 08:19:45.

198. Appendix 2 to Primo-03801, p. 2918.

199. Several of these individuals hold other positions at earlier or later moments.

200. Primo-03883, p. 3013─3028.

201. Primo-05484, pp. 4509.

202. Official report, Translation of the videos in case file of Pulatov and Dubinskiy, dated 15 January 2021, pp. 12─16 and page 21.

203. Official report, Translation of the videos in the case file of Pulatov and Dubinskiy, dated 15 January 2021, pp. 40.

204. SC 2 December 2014 (ECLI:NL:HR:2014:3474), SC 24 March 2015 (ECLI:NL:HR:2015:718) and SC 5 July 2016 (ECLI:NK:HR:2016:1316).

205. For example, SC 8 April 1997 (ECLI:NL:HR:1997:ZD0681, NJ 1997, 443).

206. SC 29 April 1997 (ECLI:NL:HR:1997:ZD0148, NJ 1997, 654); District Court of Limburg 13 November 2019 (ECLI:NL:RBLIM:2019:10220); SC 12 June 2018 (ECLI:NL:HR:2018:895) and SC 29 April 1997 (NJ 1997, 654).

207.

208. That annex is included in Appendix 1 to this judgment.

209. That annex is included in Appendix 1 to this judgment.

210. ECLI:NL:HR:2019:793, under 2.2.

211. Convention on Court Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters of 16 September 1988 and 30 October 2007, respectively.

212. These proceedings are based on a provision of the US Torture Victim Protection Act which reads: “

213. To avoid conflicting judgments in civil cases between the same parties on the same question, any judge who is presented with a case that is already being heard by a competent court abroad must decline jurisdiction.

214. EC Regulation No. 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations, OJEU 2007 L 199.

215.

216. Parliamentary Papers 34 257, No. 6. Memorandum regarding the report, under “7. Transitional Law.”

217. Netherlands Supreme Court 27 September 2016 (ECLI:NL:HR:2016:2201) and Netherlands Supreme Court 4 October 2016 (ECLI:NL:HR:2016:2241).

218. Resolution of the Plenum of the Supreme Court of Ukraine “On Ukrainian courts” practice of applying legislation on recovery of pecuniary damages arising from criminal offence and recovery of groundlessly acquired property No. 3 dated 31 March 1989.

219. Analogous, for example, to the rulings in Vallianatos and others vs. Greece, ECHR 7 November 2013 (29381/09 and 32684/09) and Oliari and others vs. Italy, ECHR 21 October 2015 (18766/11 and 36030/11).

220. See Verkeersrecht (journal) 2018/156, De wet affectieschade in werking [The law regarding emotional damage in effect], S.D Lindenbergh: under 5.

221. The names of these injured parties and – to the extent necessary – the names of the loved ones about whom they are speaking have been redacted by the court. Appendix 4 lists the names of the injured parties, also indicating the numbering used in this judgment.

222. Regardless of the living situation on 17 July 2014.

223. Regardless of the age of the children. Includes biological, adoptive, stepfamily and foster relationships.

224. Includes biological, adoptive, stepfamily and foster relationships.

225. Includes biological and adoptive relationships, but not foster or stepfamily relationships.

226. Includes biological and adoptive relationships, but not foster or stepfamily relationships.

227. Includes biological siblings, including half-siblings, stepsiblings and adoptive and foster relationships.

228. Where the court addresses individual claims below, it will refer to those injured parties – at their own request – in each case using a ‘code’ (e.g. A1.1). The codes A1 to A6 correspond to the six respective counsel for the relatives, and the number after the point is the number which counsel in question assigned to that injured party.

229. SC 1 June 2021 (ECLI:NL:HR:2021:812).

230. Primo-08529, p. 10076, Primo-07316, p. 9284 and intercepted conversation on 19 July 2014 at 12:28:02.

231. Primo-04996, p. 4094.

232. Primo-05024, pp. 4173 and 4174.

233. Primo-03490, p. 2221, Primo-02712, p. 1592, and Primo-02743, p. 1694.

234. Primo-03145, p. 1988.

235. Primo-05542, p. 4579.

236. Primo-05359, p. 4396.

237. Primo-03604, pp. 2274 and 2281.

238. Primo-08704, p. 10244.

239. Primo-09443, p. 10613 and Primo-10336, p. 11140.

240. Primo-03480, pp. 2169 and 2173.

241. Primo-04830, p. 14931.

242. Primo-08268, p. 9995.

243. Primo-04186, p. 3323.

244. Primo-03578, pp. 2241─2243.

245. Primo-07297, pp. 9050 and 9058.

246. Primo-04057, pp. 3140 and 3146.

247. Primo-00003, p. 10.

248. Primo-04307, pp. 3365 and 3370.

249. Official record of questioning of witness S21 by the investigating judge between 1 May 2021 and 1 August 2021, pp. 22 and 23.

250. Primo-02992, p. 1903.

251. Primo-04979, pp. 4014 and 4017.

252. Primo-04304, pp. 3351 and 3352.

253. Primo-04384, p. 3497.

254. Based on information from intercepted conversations on 12 July 2014 at 16:12:23, on 16 July 2014 at 18:55:28 and on 16 July 2014 at 20:37:39.

255. Appendix 21 to Primo-05427, p. 149.

256. Primo-05532, p. 4574, and intercepted conversation on 15 July 2014 at 16:29:56.

257. Primo-04017, pp. 3119 and 3120.

258. Primo-04790, pp. 3605, 3608 and 3614.

259. Primo-05760, pp. 6159 and 6163.

260. Primo-03364, p. 1114 and Primo-04502, p. 3.

261. Primo-05708, p. 6118, and intercepted conversation on 15 July 2014 at 14:52:02.

262. Intercepted conversation on 8 June 2014 at 11:30:47.

263. Intercepted conversation on 8 June 2014 at 11:46:33.

264. Intercepted conversation on 6 July 2014 at 16:48:47.

265. Intercepted conversation on 6 July 2014 at 17:13:00.

266. Intercepted conversation on 7 July 2014 at 13:31:28.

267. Intercepted conversation on 15 July 2014 at 13:25:41.

268. Intercepted conversation on 15 July 2014 at 13:29:07.

269. Intercepted conversation on 15 July 2014 at 13:42:12.

270. Intercepted conversation on 15 July 2014 at 13:57:01.

271. Intercepted conversation on 15 July 2014 at 14:36:36.

272. Intercepted conversation on 15 July 2014 at 14:37:46.

273. Intercepted conversation on 15 July 2014 at 15:23:23.

274. Intercepted conversation on 15 July 2014 at 16:17:15.

275. Intercepted conversation on 15 July 2014 at 16:29:56.

276. Intercepted conversation on 15 July 2014 at 17:56:41.

277. Intercepted conversation on 15 July 2014 at 19:37:27.

278. Intercepted conversation on 15 July 2014 at 20:27:43.

279. Intercepted conversation on 15 July 2014 at 21:16:33.

280. Intercepted conversation on 15 July 2014 at 22:54:14.

281. Intercepted conversation on 15 July 2014 at 23:29:24.

282. Intercepted conversation on 16 July 2014 at 04:37:06.

283. Intercepted conversation on 16 July 2014 at 07:34:17.

284. Primo-03610, p. 2335, and Primo-11298, p. 11664.

285. Primo-11298, p. 11664.

286. Intercepted conversation on 16 July 2014 at 11:43:49.

287. Intercepted conversation on 16 July 2014 at 11:50:49.

288. Intercepted conversation on 16 July 2014 at 12:14:35.

289. Intercepted conversation on 16 July 2014 at 13:16:12.

290. Intercepted conversation on 16 July 2014 at 13:22:24.

291. Intercepted conversation on 16 July 2014 at 13:26:21.

292. Intercepted conversation on 16 July 2014 at 13:33:02.

293. Intercepted conversation on 16 July 2014 at 13:39:27.

294. Intercepted conversation on 16 July 2014 at 15:28:24.

295. Intercepted conversation on 16 July 2014 at 16:23:14.

296. Intercepted conversation on 16 July 2014 at 17:11:11.

297. Intercepted conversation on 16 July 2014 at 17:52:25.

298. Intercepted conversation on 16 July 2014 at 17:54:42.

299. Intercepted conversation on 16 July 2014 at 18:12:49.

300. Intercepted conversation on 16 July 2014 at 18:43:08.

301. Intercepted conversation on 16 July 2014 at 18:55:28.

302. Intercepted conversation on 16 July 2014 at 19:09:20.

303. Intercepted conversation on 16 July 2014 at 19:13:30.

304. Intercepted conversation on 16 July 2014 at 19:48:23.

305. Intercepted conversation on 16 July 2014 at 19:57:59.

306. Intercepted conversation on 16 July 2014 at 20:06:49.

307. Intercepted conversation on 16 July 2014 at 20:11:57.

308. Intercepted conversation on 16 July 2014 at 20:45:18.

309. Intercepted conversation on 16 July 2014 at 20:49:55.

310. Intercepted conversation on 16 July 2014 at 20:57:01.

311. Intercepted conversation on 16 July 2014 at 22:02:39.

312. Intercepted conversation on 17 July 2014 at 00:12:15.

313. Intercepted conversation on 17 July 2014 at 00:17:09.

314. Intercepted conversation on 17 July 2014 at 00:26:56.

315. Intercepted conversation on 17 July 2014 at 07:05:46.

316. Intercepted conversation on 17 July 2014 at 08:23:24.

317. Intercepted conversation on 17 July 2014 at 08:27:03.

318. Intercepted conversation on 17 July 2014 at 08:38:20.

319. Intercepted conversation on 17 July 2014 at 09:08:26.

320. Primo-09935, p. 11005.

321. Primo-10305, pp. 11095─11109.

322. Appendix 1, pp. 12613, 12615 and 12616, to Primo-13325.

323. Primo-12574, pp. 13100 and 13121, Primo-13488, p. 13157, and Forensic expert report - Image Authenticity, Swedish National Forensic Centre (NFC), 31 March 2021, Appendix 2, pp. 5, 6, 7, 8 and 11.

324. Intercepted conversation on 17 July 2014 at 09:20:25.

325. Intercepted conversation on 17 July 2014 at 09:22:19.

326. Intercepted conversation on 17 July 2014 at 09:23:13.

327. Intercepted conversation on 17 July 2014 at 09:24:51.

328. Intercepted conversation on 17 July 2014 at 09:31:30.

329. Intercepted conversation on 17 July 2014 at 09:51:39.

330. Intercepted conversation on 17 July 2014 at 09:53:10.

331. Intercepted conversation on 17 July 2014 at 09:54:08.

332. Intercepted conversation on 17 July 2014 at 09:55:20.

333. Intercepted conversation on 17 July 2014 at 10:01:03.

334. Intercepted conversation on 17 July 2014 at 10:04:43.

335. Primo-03510 XX2378.

336. Primo-01213 XX03510.

337. Primo-03510, pp. 2224 and 2225, and Primo-05522, pp. 4546─4549.

338. Primo-01226, p. 642.

339. Appendix 1, pp. 2253 and 2254, to Primo-03584.

340. Primo-06616, pp. 8244 and 8245, and pp. 8251, 8252 and 8255.

341. Primo-12574, pp. 13103─13105 and 13122.

342. Primo-07832 XX02378.

343. Primo-07832, pp. 9636 and 9637.

344. Primo-07288, pp. 9009 and 9012.

345. Appendix 1, pp. 12625, 12626 and 12628, to Primo-13326.

346. Primo-08664, pp. 10189─10210.

347. Primo-12574, pp. 13107─13110 and 13122.

348. Intercepted conversation on 17 July 2014 at 11:31:21.

349. Primo-01213 XX01309 IMG_0647.

350. Appendices 3 and 6 to Primo-03445, p. 2140.

351. Primo-01226, p. 642 and Appendix 2 thereto.

352. Appendix 1, pp. 1247, 1253, 1254, 1269 and 1270, to Primo-02148. The video with the gun truck was examined in Appendix 1 to Primo-05818, KNMI Investigation Assessment of 01Zuhres Footage, May 2015, pp. 6193 and 6194. Primo-02378, p. 73.

353. Primo-06202 XX02378.

354. Primo-06202, p. 7389.

355. Primo-02378, p. 85.

356. Primo-07243, p. 8968.

357. Primo-10010, 11055─11059, and Appendices 2 and 3 thereto.

358. Primo-10695, pp. 11362, 11363 and 11367.

359. Appendix 1, pp. 1247, 1255 and 1256, to Primo-02148.

360. Primo-09022, p. 10375.

361. Intercepted conversation on 17 July 2014 at 12:39:32.

362. Intercepted conversation on 17 July 2014 at 12:42:57.

363. Intercepted conversation on 17 July 2014 at 12:51:09.

364. Intercepted conversation on 17 July 2014 at 13:09:27.

365. Primo-03883, p. 3024 and Primo-10646, pp. 11326, 11327 and 11329.

366. Appendix 1, pp. 1247, 1258 and 1259, to Primo-02148.

367. Primo-00131 XX01312.

368. Primo-05899, pp. 6574─6578, read in conjunction with Primo-02378, p. 128.

369. Appendix 1, pp. 1247, 1261─1263 and 1269, to Primo-02148.

370. NFI report Investigation into 'encoded date' of video file 'The weapon that killed the Malaysians, Snizhne, 17 July 2014', dated 9 February 2021, pp. 15, 17 and 18.

371. Forensic expert report - Video Authenticity, Swedish National Forensic Centre (NFC), 30/31 March 2021, Appendix 1, pp. 7, 8 and 22.

372. Primo-05484, pp. 4508 and 4509, and Primo-09443, p. 10606.

373. Intercepted conversation on 17 July 2014 at 14:07:30.

374. Intercepted conversation on 17 July 2014 at 14:10:00.

375. Intercepted conversation on 17 July 2014 at 14:33:10.

376. Intercepted conversation on 17 July 2014 at 14:34:51.

377. Intercepted conversation on 17 July 2014 at 15:07:52.

378. Primo-01120, p. 390 (taking into account local time differences).

379. Intercepted conversation on 17 July 2014 at 16:22:33.

380. Civilian from Druzhkovka; Primo-04307, p. 3360.

381. Intercepted conversation on 17 July 2014 at 16:35:30.

382. Intercepted conversation on 17 July 2014 at 16:48:44.

383. Intercepted conversation on 17 July 2014 at 17:16:28.

384. Intercepted conversation on 17 July 2014 at 17:42:43.

385. Intercepted conversation on 17 July 2014 at 18:20:32.

386. Intercepted conversation on 17 July 2014 at 18:28:29.

387. Intercepted conversation on 17 July 2014 at 18:40:45.

388. Intercepted conversation on 17 July 2014 at 18:44:37.

389. Intercepted conversation on 17 July 2014 at 19:01:38.

390. Intercepted conversation on 17 July 2014 at 19:28:00.

391. Intercepted conversation on 17 July 2014 at 19:35:46.

392. Intercepted conversation on 17 July 2014 at 19:52:23.

393. Intercepted conversation on 17 July 2014 at 19:54:17.

394. Intercepted conversation on 17 July 2014 at 19:59:11.

395. Intercepted conversation on 17 July 2014 at 20:30:52.

396. Intercepted conversation on 17 July 2014 at 20:32:44.

397. Intercepted conversation on 17 July 2014 at 20:41:00.

398. Intercepted conversation on 17 July 2014 at 20:54:12.

399. Intercepted conversation on 17 July 2014 at 21:13:42.

400. Intercepted conversation on 17 July 2014 at 21:32:39.

401. Intercepted conversation on 17 July 2014 at 21:40:49.

402. Primo-05484, pp. 4508 and 4509.

403. Intercepted conversation on 17 July 2014 at 21:47:47.

404. Intercepted conversation on 17 July 2014 at 22:35:02.

405. Intercepted conversation on 17 July 2014 at 23:05:49.

406. Intercepted conversation on 17 July 2014 at 23:12:17.

407. Intercepted conversation on 17 July 2014 at 23:14:47.

408. Intercepted conversation on 17 July 2014 at 23:27:33.

409. Intercepted conversation on 17 July 2014 at 23:32:34.

410. Intercepted conversation on 17 July 2014 at 23:34:14.

411. Intercepted conversation on 18 July 2014 at 00:23:38.

412. Intercepted conversation on 18 July 2014 at 00:25:26.

413. Intercepted conversation on 18 July 2014 at 01:26:38.

414. Intercepted conversation on 18 July 2014 at 07:17:31.

415. Intercepted conversation on 18 July 2014 at 07:41:06.

416. Intercepted conversation on 18 July 2014 at 07:44:57.

417. Intercepted conversation on 18 July 2014 at 08:00:37.

418. Intercepted conversation on 18 July 2014 at 08:01:35.

419. Intercepted conversation on 18 July 2014 at 08:02:43.

420. Intercepted conversation on 18 July 2014 at 08:03:44.

421. Intercepted conversation on 18 July 2014 at 10:50:10.

422. Intercepted conversation on 18 July 2014 at 11:22:50.